Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
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 Elizabeth was born on November 26, 2011, at North Shore Medical Center. The subject Petition was filed on June 21, 2018, which is more than five years after Elizabeth’s birth. Dr. Mark Spence was the physician providing obstetric services and who was present at Elizabeth’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Records Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Spence 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 Respondent has no records to suggest that Dr. Spence is otherwise exempt from payment. To the contrary, Dr. Spence paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1., for non-participating, non- exempt licensed physicians. Dr. Spence was not a participating physician in the Plan at the time of Elizabeth’s birth.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Andres Romero, Bertha Romero and Alberto Romero (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Andres Romero, was born at Baptist Hospital [sic] [medical reports and records reflect South Miami Hospital] on July 22, 1991, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, 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 in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Andres Romero suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. 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 Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Andres reveal that he suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a spinal cord injury. Moreover, Andres's mental functioning is normal and not impaired due to any birth-related complications.
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.
