Findings Of Fact Tristan N. Thomas was born on August 12, 2009, at Baptist Medical Center in Jacksonville, Florida. Tristan weighed in excess of 2,500 grams. Donald Willis, M.D., was requested by NICA to review the medical records of Tristan. Based on his review of the medical records, Dr. Willis opined as follows: In summary, labor was complicated by hypertension and a placental abruption. This resulted in a depressed baby at birth. Full resuscitation was required. The initial blood gas after birth was consistent with severe acidosis with a pH of 6.6. Seizures developed shortly after birth. EEG and MRI were consistent with HIE. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post delivery period. This oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Michael S. Duchowny, M.D., was requested by NICA to perform an independent medical evaluation of Tristan. The evaluation was done on January 22, 2014. Based on his evaluation, Dr. Duchowny opined as follows: In summary, Tristan’s neurologic examination reveals evidence of multiple developmental delays in the social, communication and behavioral domains. His findings are consistent with a clinical diagnosis of autism spectrum disorder and there are no specific focal or lateralizing findings to suggest structural brain damage. I had an opportunity to review medical records supplied to me which confirmed the history obtained from Tristan’s mother. Tristan was delivered at term at Baptist Medical Center. His mother suffered from preeclampsia and was treated with magnesium sulfate. Tristan was delivered by emergency cesarean section due to placental abruption, required resuscitation at birth and had Apgar scores of 0, 3, and 7 at 1, 5, and 10 minutes. His cord blood gases revealed severe acidosis and he was placed in a head cooling protocol for 72 hours following stabilization. However, an ultrasound of the brain on August 17, 2009 was negative as was an MRI scan performed on August 18, 2009. In summary, the findings on examination today together with the medical history did not provide evidence of significant brain damage and Tristan does not suffer from a substantial motor impairment. Furthermore, his neurological problems did not, in my opinion result from either mechanical injury or oxygen deprivation acquired in the course of labor and delivery. His autism spectrum disorder is a primary developmental disability of prenatal origin. I, therefore, believe that Tristan should not be considered for admission into the NICA program. A review of the file does not show any contrary opinion to Dr. Willis’ opinion that Tristan did sustain oxygen deprivation during labor, delivery, and resuscitation in the immediate post-delivery period Plan. Dr. Willis could not comment on the extent of any brain injury that resulted from the oxygen deprivation. Dr. Duchowny opines that Tristan does not suffer from significant brain damage and that Tristan does not have a substantial motor impairment. These opinions are not disputed and are credited.
Findings Of Fact Josiah was born on September 9, 2018, at OPMC. Josiah weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of OPMC submitted with the Claim. In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: In summary, the mother presented to the hospital in early labor with a reassuring FHR tracing. While under observation in the hospital, spontaneous rupture of the membranes occurred with resulting fetal bradycardia Stat Cesarean section was done with delivery of a depressed newborn. Cord pH was <6.733 with a base excess of -25. Despite cooling protocol, the newborn hospital course was complicated by multi system organ failures. EEG was noted to be severely abnormal. Head ultrasound on the day of birth showed cerebral edema and MRI on DOL 10 was consistent with HIE The child was subsequently diagnosed with spastic cerebral palsy. Dr. Willis’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. 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. The opinion of Dr. Willis that Josiah did suffer an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post-delivery period, which resulted in brain injury, is credited. Petitioner does not contest this finding. In the instant case, NICA has retained Raj D. Sheth, M.D. (Dr. Sheth), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sheth opined: In SUMMARY, Josiah's neurological examination reveals evidence of severe neurologic impairment that is likely to be permanent affecting gross motor, fine motor, personal social and language areas. Much of Josiah's neonatal course was detailed in the history of present illness. He was born at 38 weeks gestation with Apgar scores were 1, 4 and 6 at 1, 5 and 10 minutes. He required immediate intubation head cooling developed neonatal seizures that did not persist and has an exam consistent with severe hypoxic ischemic encephalopathy. His initial chemistries and blood gases are as reported above. Dr. Sheth’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: As of the time of this examination and evaluation Josiah's case indicates that he suffers from both a substantial mental and substantial physical impairments that are permanent. These impairments are consistent with an injury to the brain acquired due to oxygen deprivation occurring during labor and delivery. 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. Sheth. The opinion of Dr. Sheth that Josiah did suffer a substantial mental and motor impairment, due to oxygen deprivation that was acquired in the course of labor and delivery, is credited. Petitioner does not contest this finding.
Findings Of Fact Colin Trust was delivered on September 14, 2011, at Boca Raton Regional Hospital in Boca Raton, Florida. Colin weighed 3,370 grams at delivery. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Colin. In an affidavit dated January 8, 2015, Dr. Willis opined in pertinent part: In summary, there was no fetal distress during labor and the baby was not depressed at birth and had a normal newborn hospital course. Essentially, there was nothing to suggest oxygen deprivation during labor or delivery. The “previously healthy baby” was noted to have lack of head growth at two months of age and MRI evaluation found a large brain infarct, which did not appear to be recent. It is most likely the cerebral infarct occurred at some time during pregnancy and prior to labor and delivery. Newborn depression and a complicated newborn hospital course would have been expected if the oxygen deprivation would have occurred during labor or delivery. Colin Trust did suffer a stroke. A mechanical injury during labor and delivery or the immediate post-delivery period could not cause a stroke. Further, there was no mechanical injury that occurred here. The delivery was by C-section, no forceps were used and there was not a vacuum extraction; accordingly, there is no basis that could have been any mechanical trauma. While oxygen deprivation can result in a stroke, as reflected by my Report, there was no evidence of any oxygen deprivation that occurred during labor, delivery or the immediate post-delivery period. Further, if there had been a stroke during this period of time, you would expect to see different symptoms once the child was born; there were no such symptoms. There is no medical basis to opine that Colin Trust suffered a stroke during the course of labor, delivery or the immediate post-delivery period as a result of either oxygen deprivation or mechanical injuries (neither of which even occurred here). Accordingly, it is my opinion 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. The child has documented brain injury that most likely occurred at some time during pregnancy and before labor and delivery. A review of the file in this case reveals that there has been no expert opinion filed that is contrary to the opinion of Dr. Willis. 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 is credited.
The Issue The issues to be determined are whether Eliana Ricketts (Eliana) suffered a birth-related neurological injury; and, if so, whether that injury renders the infant permanently and substantially mentally and physically impaired, as provided by section 766.302(2), Florida Statutes (2016).
Findings Of Fact Eliana was born on September 16, 2017, at Baptist Hospital, a licensed hospital in Jacksonville, Florida. Eliana was a child born of a single gestation, weighing 3,595 grams. NICA retained Donald C. Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Eliana and her mother, Michelle Ricketts. NICA asked Dr. Willis to provide an opinion as to whether there was a brain or spinal cord injury to Eliana, due to either oxygen deprivation or mechanical injury that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Dr. Willis authored a report to NICA on February 20, 2018, which is incorporated into his affidavit dated March 7, 2019. In his report, Dr. Willis stated in part: The mother, Michelle Ricketts [had] . . . no significant prenatal problems. She was admitted to the hospital at term in labor. Her cervix was dilated 4 cms on admission. The fetal heart rate (FHR) monitor tracing during labor was available for review. The baseline heart rate was normal at 140 bpm with normal variability. A decrease in FHR variability developed about 3 hours prior to delivery. Variable FHR decelerations started about 30 minutes prior to delivery. Cervical dilation was complete. Vacuum extractor was applied to assist vaginal delivery due to FHR decelerations and maternal fatigue. Delivery of the fetal head occurred after three pulls with one pop-off. Delivery was then complicated by a shoulder dystocia, lasting 4 minute 40 seconds. Birth weight was 3,595 grams. The newborn was depressed with Apgar scores of 3/5. Umbilical cord blood gas was not done. There was no respiratory effort at birth. Intubation was required and the baby transferred to the NICU. Chest X-Ray showed no infiltrates. Hypoxic ischemic encephalopathy (HIE) was suspected and head cooling protocol initiated. There was a large subgaleal hematoma. The scalp was boggy with swelling behind the ears. The subgaleal hemorrhage resulted in anemia with a Hct of 27% to 28%. Blood transfusion was required. DIC was also present. The platelet count dropped to 84,000 with fibrinogen levels of 166 to 110 and prolonged PT and PTT. Cryoprecipitate and platelet transfusions were given. Seizures began shortly after birth. Arterial blood gas (ABG) at one hour after birth had a pH of 7.23 and a base excess of -17. ABG 4 hours later had a pH of only 7.14 and a base excess remaining at -17. The initial EEG was abnormal, confirming seizure activity. Follow-up EEG on DOL [day of life] 3 was consistent with diffuse cerebral dysfunction. MRI on DOL 5 showed extensive bilateral infarctions, consistent with “significant anoxic injury” and extensive scalp swelling. * * * There was an obstetrical event that resulted in loss of oxygen to the baby’s brain during delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the injury. Eliana’s medical records were also reviewed by Laufey Sigurdardottir, M.D., a board-certified pediatric neurologist at Nemours Children’s Hospital. Dr. Sigurdardottir examined Eliana when she was just short of seven months old. Included in the records she reviewed were records of a neurological follow-up at four months with another neurologist, which state in part: [Four] month old girl with history of HIE and subsequent seizures that have since resolved. Overall, Eliana has tolerated Phenobarbital without side effects. Her most recent EEG (12/5/17) was normal. She has not had any clinical events concerning for seizures. She is currently on track with milestones (tracking, rolling, cooing, etc.) and physical exam is notable for the absence of any focal features and normal tone. She previously tested out of ‘Early Steps’ as there were no motor concerns from that perspective. As a result of her own examination of the infant, Dr. Sigurdardottir found Eliana upon examination to be alert, interactive, with what appeared to be normal development. She also found that she had a strong grasp with both hands bilaterally, and had normal response on vertical and horizontal suspension. She stated in summary: Patient is a 6 month old with history of Brachial plexus injury during complicated vaginal delivery as well as hypoxic ischemic event, resulting in a moderate to severe hypoxic ischemic encephalopathy. She had refractory neonatal seizures, evidence of acute ischemic injury on brain MRI and abnormal neurological exam in neonatal period. She has developed acquired microcephaly but has made remarkable neurologic recovery and is close to being age appropriate for her motor milestones at this time. Dr. Sigurdardottir opined that while Eliana did suffer a neurological injury to the brain due to oxygen deprivation during labor and delivery, she did not find permanent and substantial delays in motor and mental abilities, and, at the time of the examination, did not fulfill the criteria of having permanent and substantial mental and physical impairment. The opinions of Drs. Willis and Sigurdardottir, which are unrebutted, are credited. It is found that Eliana suffered from oxygen deprivation during delivery and into the immediate postdelivery period, which caused a brain injury. While Dr. Willis determined that there was a brain injury at birth, he did not comment on the severity of the injury. Dr. Sigurdardottir, however, opined, and it is found, that the injury did not result in a permanent and substantial physical and mental impairment.
Findings Of Fact Christian Scott was born on August 2, 2011, at Homestead Hospital located in Homestead, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a report dated December 19, 2014, Dr. Willis described his findings as follows: The mother was admitted to the hospital at 40 5/7 weeks in labor. The fetal heart rate (FHR) tracing during labor was reviewed. There was a normal baseline FHR on admission of 150 bpm. The pattern was reactive and did not suggest any fetal distress. Fetal tachycardia developed shortly after hospital admission with a FHR of 160 bpm. The pattern continued to be reactive. A brief episode of later FHR decelerations occurred about two hours prior to birth. The baseline FHR was 180 bpm when the monitor was removed about twenty-five minutes before delivery. Cesarean section delivery was done for a non- reassuring FHR pattern, which appears to be primarily fetal tachycardia. Amniotic fluid was clear when membranes were ruptured at time of delivery. Birth weight was 3,475 grams or 7 lbs 10 oz’s. Delivery was described as uncomplicated. The baby was not depressed at birth. Apgar scores were 9/9. No resuscitation was required. The baby was noted to have a fever and apparently the mother was also febrile. Antibiotics were started. The baby was transferred to another facility due to persistent vomiting. No medical records were available from the second hospital. The baby was delivered at Homestead Hospital. No dictated admission or discharge note from the nursery was available for review. Doctor’s hand written notes were included in the medical records. Some of these notes were difficult to read. Medical records for a subsequent twin pregnancy in 2014 for the mother, Christina Dunbar, were also included. In summary: the mother was admitted to the hospital at term in labor. Cesarean section was done for a non-reassuring FHR pattern, which was primarily fetal tachycardia. The baby was not depressed at birth and required no resuscitation. Apgar scores were 9/9. 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. In an affidavit dated January 7, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the mother was admitted to the hospital at term in labor. Cesarean section was done for a non- reassuring FHR pattern, which was primarily fetal tachycardia. The baby was not depressed at birth and required no resuscitation. Apgar scores were 9/9. As such, it is my opinion 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. A review of the file in this case reveals that there have been no 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, and Petitioners have filed their Petition under Protest, stating that they are not claimants. Dr. Willis’ opinion is credited.
The Issue At issue is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the hospital.
Findings Of Fact Fundamental findings Jackson Joseph Fischler (Jackson) is the legally adopted son of Kenneth J. and Laura P. Fischler. He was born a live infant on June 1, 1992, at Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams. During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Jackson sustained an injury to the brain or spinal cord caused by oxygen deprivation and/or mechanical injury which rendered him permanently and substantially mentally and physically impaired. As a consequence of the foregoing, the sole issue to be resolved in deciding whether this claim should be accepted for compensation is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, as required by Subsections 766.309(1)(b) and 766.31(1), Florida Statutes. The birth of Jackson Joseph Fischler At or about 7:09 p.m., June 1, 1992, the Pembroke Pines Fire Department, Emergency Medical Services (EMS), arrived at the residence of Shirley George, Jackson's birth mother, in response to a 911 call. At the time, Ms. George reported that she was at term, with a caesarean section scheduled 5 days hence for a breach presentation and that her "water may have broken." Subsequent medical records reflect a spontaneous rupture of the membrane at 7:00 p.m. When examined by EMS, Ms. George was experiencing contractions approximately 2 minutes apart, lasting 30-40 seconds. EMS transported Ms. George to Memorial Hospital West, where she was admitted through the emergency room at approximately 7:15 p.m., in labor. Ms. George was then taken to an examination room, and the labor and delivery unit was requested to provide a nurse to examine her. At or about 7:17 p.m., a labor and delivery nurse performed a pelvic examination of Ms. George and immediately diagnosed a prolapse of the umbilical cord, and a fetal heart rate of approximately 60 beats per minute. A prolapsed umbilical cord is a obstetrical emergency, which in the instant case required prompt surgical intervention to address fetal distress. Consequently, Ms. George was immediately rushed to the operating room for an emergency caesarean section. At the time, the on-call obstetrician, Robert Klein, M.D., was at Hollywood Memorial East, where he had been called for surgery. Therefore, shortly after 7:17 p.m., Dr. Klein was advised by telephone of the emergency involving Ms. George, and was requested to come to Memorial Hospital to attend to the situtation. Consequently, according to Dr. Klein, he "unscrubbed the patient of mine at Hollywood Memorial East . . . and in my greens I drove to Memorial Hospital West." Following notice to Dr. Klein and prior to his arrival at Memorial Hospital West, an overhead page was made for any obstetrician or surgeon in house to call the operating room, and 2-3 minutes later a blue alert to the operating room was called. The emergency room physician responded to the blue alert. Upon arrival in the operating room, he was apparently advised that the fetal heart rate was in the 40 beat per minute range and was asked if he could perform a caesarean section. The emergency room physician, not being qualified to perform the operation, declined, and Rudy Zepeda, M.D., the house physician, who was also present, agreed to perform the caesarean section "to save the baby's life." At this point in the factual narrative it is worth observing, considering the central issue in this case, that Dr. Zepeda, an unlicensed house physician, was not, at anytime material to this case, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Conversely, Dr. Klein, the on-call obstetrician, albeit not in attendance at the time, was a "participating physician" in the Plan. In the operating room, Ms. George was on the table at 7:23 p.m., anesthesia was started at 7:25 p.m., and Dr. Zepeda commenced the operation at 7:38 p.m. Jackson was delivered at 7:48 p.m., and the placenta at 7:49 p.m. Upon delivery, Dr. Zepeda handed Jackson to Dr. McIntyre, the on-call neonatologist, and he was immediately intubated and bagged with 100 percent oxygen, with good response in heart rate and color only, and first gasp was noted at 7 minutes. Apgar scores were 2 at one minute, 3 at 5 minutes, and 4 at 10 minutes, and at or about 8:00 p.m. Jackson was transferred to the neonatal intensive care unit (ICU) with positive ventilator support. Following Dr. Zepeda's delivery of Jackson and the placenta, but before Jackson's transfer to the neonatal ICU, Dr. Klein entered the operating room. Observing the situation, Dr. Klein reportedly asked Dr. Zepeda to finish the case on his own, but Dr. Zepeda "told him to scrub in." Dr. Klein was noted to have entered the operative field at 7:55 p.m., at which time he observed "the uterus was closed in the first layer," which would be the first step in the procedure after delivery of the placenta, and he proceeded to complete the operation. According to his operative report, Dr. Klein provided, inter alia, the following services incident to the caesarean section: . . . UPON ENTERING THE OPERATIVE FIELD THE UTERUS WAS [observed to have been] CLOSED IN THE FIRST LAYER AND I USED NUMBER 0 CHROMIC TO CLOSE THE SECOND LAYER. IT WAS VERY DIFFICULT TO FIND THE BLADDER FLAP WHICH WAS NOT CREATED UPON ENTRY TO THE UTERUS. TWO VIALS OF METHYLENE BLUE WERE INJECTED INTRAVENOUS BY THE ANESTHESIOLOGIST. APPROXIMATELY TEN MINUTES LATER METHYLENE BLUE DYE WAS NOTED IN THE FOLEY BAG. UPON CLOSURE OF THE UTERUS THE OVARIES AND TUBES WERE FOUND TO BE WITHIN NORMAL LIMITS. THE PERITONEUM WAS NOT CLOSED BUT APPROXIMATED. THE MUSCLE WAS CLOSED IN THREE SEGMENTS CREATING NORMAL LOOKING MUSCLE, APPROXIMATING LONGITUDINAL AND VERTICAL INCISION OF THE MUSCLE WHICH WAS DONE UNDER EMERGENCY CONDITIONS BY THE SURGICAL RESIDENT. THERE WAS MODERATE AMOUNT OF BLEEDING, HOWEVER, THIS WAS CONTROLLED WITH THE BOVIE AND THREE PIECES OF SURGICEL WERE PLACED OVER THE MUSCLE ABOVE THE FASCIA. THE FASCIA THEN WAS CLOSED WITH NUMBER 0 VICRYL IN A CONTINUOUS INTERLOCKING FASHION IN TWO SEGMENTS. SUBCUTANEOUS TISSUE WAS IRRIGATED. HEMODYNAMICALLY THE PATIENT WAS UNDER GOOD CONTROL AND THERE WAS NO EVIDENCE OF LOW PRESSURE DURING THE SURGERY. SHE WAS GIVEN FLUIDS AND PITOCIN 20 UNITS AND FULL LITER OF HALF NORMAL SALINE. SHE WAS ALSO GIVEN TWO GRAMS OF MEFOXIN BY THE ANESTHESIOLOGIST THE SKIN WAS APPROXIMATED AND CLOSED WITH STAPLES. COVERED WITH TELFA, 4X4, STERILE TAPE. THE URINE OUTPUT WAS ADEQUATE MIXED WITH METHYLENE BLUE. ROUTINE POSTOP ORDERS WERE WRITTEN IN THE CHART. The services Dr. Klein provided Ms. George, albeit post-delivery, were an integral part of the caesarean section delivery procedure, and were unquestionably obstetrical services. 1/ Moreover, such services were provided, at least in part, while Jackson was being resuscitated in the immediate post- delivery period. 2/ 16 As heretofore noted, Jackson was transferred to the neonatal ICU, with positive ventilator support, at or about 8:00 p.m. Upon arrival in the ICU, Jackson was placed on a respirator ("Baby Bird" mechanical ventilator support), with initial settings being an IMV of 50, pressure of 22/4 and 100 percent oxygen. Jackson's first movement, which consisted of some flexion of the extremities, was noted at or about 30 minutes of life, and there was some associated twitching of the lower jaw, which was thought to represent seizure activity. At or about 10:30 p.m., June 1, 1992, Jackson was discharged from Memorial Hospital West and transported to the neonatal ICU at Hollywood Memorial East. At the time he was on stable ventilator settings, and his seizures were under control with phenobarbital. Diagnosis on discharge was perinatal asphyxia secondary to prolapsed cord, and seizure disorder. Jackson remained at Memorial Hospital until discharged on June 23, 1992. At the time, examination revealed "slight increased tone, intermittent arching of back and retracting of head, cortical thumbs bilaterally with excessive fisting, brisk DTR's bilaterally, moro present, . . . and oral thrush." An MRI of June 6, 1992, "showed abnormal brain signal in each parietal lobe and decreased white matter signal in the basal gaglion, brain stem, mid brain and cerebellar hemispheres, possible watershed ischemia." Following maturation, neurologic examination revealed evidence of four limb spasticity with double hemiparesis, marked expressive language and motor delay. Severe swallowing and sucking difficulties necessitated gastrostomy placement.
Findings Of Fact Alexander Soriano born on July 3, 2011, at Winnie Palmer Hospital in Orlando, Florida. Alexander weighed 3,442 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alexander. In a medical report dated March 28, 2013, Dr. Willis opined the following: In summary, the mother presented at term with decreased fetal movement and an abnormal FHR pattern. There was no mention of the mother being in labor. Her cervix was not dilated and consistent with no active labor. Cesarean section delivery was required. The baby was severely depressed and had no detectable cardiac activity at birth. The hospital course was consistent with hypoxic ischemic brain injury with multisystem dysfunction, EEG and MRI studies should [sic] brain injury. Available information suggests the patient was not in labor. Oxygen deprivation and brain injury most likely occurred at some time prior to delivery. Although the hypoxia and brain injury may have continued during delivery and into the post-delivery period, the initial brain injury and substantial damage were most likely already present prior to birth. NICA retained Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the instant claim and to conduct an examination of Alexander, and render an opinion whether a birth-related neurological injury occurred. In a report dated January 23, 2013, Dr. Duchowny opined: While Alexander's birth history documents severe problems resulting from his meconium aspiration syndrome, his present neurological examination reveals neither a permanent nor substantial mental or physical impairment. Essentially Alexander has done remarkably well despite his neonatal course, and I would anticipate continued improvement in the future. I regard his developmental abnormalities as unrelated to the perinatal circumstances and therefore not recommend Alexander for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioners and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Alexander did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period is credited. Dr. Duchowny's opinion that Alexander does not have a permanent and substantial mental and physical impairment is credited.
