Findings Of Fact Kelia Santiago was born on October 25, 2011, at Tampa General Hospital in Tampa, Florida. She was a single gestation. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kelia. In a report dated December 11, 2014, Dr. Willis described his findings in pertinent part as follows: Birth weight was reported as 2210 grams and 2201 grams in different sites in the mother’s medical records. Apgar scores were not given. Cord blood pH was normal at 7.29. No records were available from the NICU for review. * * * In summary, there was no fetal distress during labor. Delivery was by repeat Cesarean section with normal blood gas. Birth weight was <2,500 grams. NICU records were not available for review. This baby was born prematurely due to premature rupture of the membranes. Birth weight appears to be less than 2,500 grams. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery. NICU records were not available, so I have no comment about oxygen deprivation in the post delivery period. Birth weight was <2,500 grams. In an affidavit dated January 7, 2015, Dr. Willis reaffirmed his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery, and his review of the medical records revealed that the birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kelia’s birth weight was less than 2,500 grams, or his opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the brain during labor or delivery. Dr. Willis’ opinion is credited.
Findings Of Fact Fundamental findings Darrin Ruffin, Jr. (Darrin) is the natural son of Lisa Ruffin and Darrin Ruffin, Sr. He was born a live infant on August 11, 1989, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Darrin was Lance Sang, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Darrin's birth and subsequent condition A review of the prenatal and the labor and delivery records pertinent to this case fails to reveal any untoward event or any injury to the child during the labor and delivery process. As observed by Michael Duchowny, M.D., a pediatric neurologist whose opinions are credited: Q. Okay. All right, Doctor. Now, did you review any prenatal and labor and delivery records? A. Yes, those were also from the University Medical Center in Jacksonville where Darrin Ruffin, Jr. was born. Q. Would those be the records of his mother? A. Yes, they would. Q. Now, sir, you reviewed those records in order to render an opinion if you can as to whether or not Darrin Ruffin, Jr. suffered a birth-related neurological injury caused by oxygen deprivation or mechanical trauma during labor, delivery or immediate post delivery resuscitation. Were you able to review those records and render such an opinion? A. Yes, I was. Q. Would you please tell us, Doctor, what your opinion is to that question, within a reasonable degree of medical probability? A. After having reviewed Darrin Ruffin's birth records, including the records of the pregnancy of his mother and the prenatal care and the labor and delivery sequence, I found no evidence of birth-related complications. I thought that the entire labor and delivery process was normal, and didn't indicate any abnormalities whatsoever. Q. Okay, Doctor. Would you stop one moment there and just tell us those aspects of the labor and delivery that you believe qualified as a completely normal labor and delivery? A. Well, if one just looks through the labor and delivery itself, there were no complicat- ions that were noted in the records, the birth weight was within normal limits. It was, I believe, just over three thousand grams. This infant had normal physical parameters including the head circumference. There were no problems with establishing respirations at birth and in fact the APGAR scores at one and five minutes were nine, which is in the high range of normal. Ultimately this patient had a stable course in the newborn nursery and was discharged on no medications and with no special instructions. [Respondent's exhibit 1, pages 6-8.] Evidence of Darrin's subsequent development likewise fails to support the conclusion that he suffered a birth-related neurological injury. Pertinent to this conclusion are the following observations of Dr. Duchowny which are credited: Q. ... Do you have any further comments relative to the present condition of the infant or the course of the infant's progress as indicated in the records? A. Well, the subsequent records indicate that Darrin was experiencing developmental difficulties and for this problem he was evaluated extensively at the Children's Hospital in Boston. Aside from a physiological tremor which is of no specific diagnostic significance, he did not have any features in his evaluation which suggested that he had had problems related to the birthing process. He was cognitively delayed. He was found to be in the mild range of mental retardation, but with no other findings, certainly no significant motor findings and no findings referable to birth hypoxia, so I believe that his problems were primarily related to his level of cognitive function and not related to birth-related injury. Q. And the records indicated that he suffered from no physical neurological abnormality? A. That's correct, with the exception of a very mild tremor which again, as I say, is an incidental finding. So with the exception of the tremor, there were no physical impairments. Q. Okay, Doctor. That being said, is it your opinion that Darrin Ruffin, Jr. did not then suffer a birth-related neurological injury? A. Yes, it is. [Respondent's exhibit 1, pages 8-9]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition for compensation filed by Lisa Ruffin and Darrin Ruffin, Sr., as parents and natural guardians of Darrin Ruffin, Jr., a minor, be and the same is hereby denied with prejudice. DONE AND ORDERED this 26th day of December 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1995.
Findings Of Fact Spencer Heaton was born on August 17, 2015, at Florida Hospital in Orlando, Florida. He was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from Florida Hospital, and a four-page discharge record for Ashley and Spencer Heaton. The medical records show that Spencer Heaton’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from Florida Hospital showing that Spencer Heaton’s birth weight was less than 2,500 grams.
Findings Of Fact Eleanor was born on August 28, 2017, at Lower Keys Medical Center in Key West, Florida. Eleanor was a single gestation weighing over 2,500 grams at birth. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Eleanor and her mother, Laura Ann Ontiveros, and opine as to whether there was an injury to her brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated September 9, 2018, Dr. Willis set forth the following: The mother was admitted to the hospital at 37 weeks gestational age in labor. A fetal heart rate (FHR) monitor tracing during labor was reviewed and showed no fetal distress. Delivery was by Cesarean section for arrest of dilation. Birth weight was 2,857 grams. Amniotic fluid was clear. The baby was not depressed at birth. Apgar scores were 8/9. No resuscitation was required. Newborn physical exam states “Healthy Term Newborn.” The baby failed the newborn hearing test in one ear. Newborn hospital course was otherwise uncomplicated and the baby was discharged home on DOL 2. Hearing evaluation after hospital discharge identified hearing loss in one ear. Records also indicate the child had Torticollis and limited mobility. MRI at 7 months of age identified a small Arachnoid cyst, slightly increased extra axial fluid and a simple pineal cyst. There were mention of findings suggestive of hypoxic ischemic encephalopathy (HIE). In summary, pregnancy was essentially uncomplicated. Cesarean section was done during labor for Arrest of Dilation. The baby was not depressed at birth with Apgar scores of 8/9. No resuscitation was required. The baby was discharged home on DOL 2. MRI at 7 months of age did not describe findings consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery or in the immediate post-delivery period. Respondent’s Motion also relies upon Dr. Willis’s January 14, 2019, affidavit, wherein he affirms, to a reasonable degree of medical probability, the above-quoted findings and opinions from the report. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Eleanor and her mother, conduct an Independent Medical Examination (IME) of Eleanor, and opine as to whether Eleanor suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury, as that term is defined in Section 766.302(2), Florida Statutes. Dr. Duchowny reviewed the medical records, obtained historical information from Eleanor’s mother, and performed an IME on November 28, 2018. Respondent’s Motion also relies upon the attached affidavit from Dr. Duchowny, dated January 14, 2019. In his affidavit, Dr. Duchowny testifies, as follows: It is my opinion that: In summary, Eleanor’s examination reveals neurological findings consistent with a diagnosis of ataxic hypotonic cerebral palsy associated with sensorineural and conductive hearing losses. Eleanor has preserved social awareness. It is premature to adequately assess cognitive functioning although her speech output is obviously delayed. She evidences dysmorphism characterized by epicanthal folds and a saddle nasal bridge. A review of the medical records does not disclose any significant risk factors during labor or delivery. Eleanor’s Apgar scores were 8 and 9 at 1 and 5 minutes, and her post-natal course in the newborn nursery was unremarkable. MR imaging performed on April 26, 2018 revealed benign cysts of the right anterior temporal and pineal regions. Based on today’s evaluation and record review, I believe that Eleanor’s neurological disabilities were acquired prior to birth and did not result from either oxygen deprivation or mechanical injury in the course of labor or delivery. In his affidavit, Dr. Duchowny testifies that his opinions are to a reasonable degree of medical probability. A review of the file, including Petitioner’s Response, reveals that no contrary evidence was presented to dispute the findings and opinions of Drs. Willis and Duchowny. Their opinions are credited.1/
The Issue The issue in this case is the amount of attorneys' fees to be awarded to Petitioner's Counsel pursuant to the Mandate of the Third District Court of Appeal entered on Case No. 3D11- 1621, as well as the Order in that case granting Appellee's Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(b) and § 57.105, Fla. Stat.
Findings Of Fact On November 22, 2010, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. On May 20, 2011, a Summary Final Order of Dismissal was entered dismissing Petitioner’s Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., finding that the claim was not compensable and was barred by section 766.313. On June 16, 2011, the University of Miami, d/b/a University of Miami School of Medicine appealed the final order to the Third District Court of Appeal. On June 20, 2011, Leslie Caroline McLeod, M.D.; Nathalie Dauphine McKenzie, M.D.; Marion Frederic Colas-Lacombe, M.D.; Jerry M. Giles, M.D.; Hugo Gonzalez-Quintero, M.D.; and the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital filed a Notice of Joinder of the Notice of Appeal of the Final Administrative Action. The defendants in the medical practice action filed a Motion for Stay Pending Appeal in the circuit court. By letter dated June 22, 2011, Petitioner sent a letter to the defendants in the medical malpractice action, who were also the appellants in the appeal. The letter advised that Petitioner would be filing motions for attorneys’ fees if the defendant/appellants did not withdraw the notice of appeal, joinder of appeal, and motion for stay. Copies of the motions for fees, which Petitioner intended to file in the Third District Court of Appeal and the circuit court accompanied the letter. The letter did not mention fees for the administrative action which was on appeal. On January 3, 2012, Petitioner filed Appellee’s Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(B) and § 57.105, Fla. Stat., seeking attorneys’ fees as a sanction against Appellants/Intervenors. The Third District Court of Appeal granted the motion and remanded the case to the Division of Administrative Hearings to conduct a hearing on the amount of fees to be awarded. On February 4, 2013, the final hearing on the fees awarded by the Third District Court of Appeal commenced. On the same date, Petitioner filed Petitioner’s Motion for Attorneys’ Fees and Costs Pursuant to Florida Statutes § 57.105 with the Division of Administrative Hearings. The motion seeks attorneys’ fees for the administrative action on Petitioner’s claim for benefits under the plan administered by the Florida Birth-Related Neurological Injury Compensation Association. A Final Order on Fees was entered on May 23, 2013, which determined the amount of attorneys’ fees to be awarded to Petitioner pursuant to the order of the Third District Court of Appeal. Included in the amount awarded were fees associated with the Notice of Appeal and the Motion for Stay Pending Appeal.
The Issue The issue to be determined is whether the infant, Daryl Bowman (Daryl), suffered a birth-related injury as defined by section 766.302(2), Florida Statutes (2017).
Findings Of Fact On March 28, 2017, at 7:12 a.m., MoKneesha Carter gave birth to a baby boy named Daryl Bernard Bowman. A certified copy of Daryl’s birth certificate was submitted by Petitioners with the Petition for Benefits, and is also Respondent’s Exhibit A to the Motion for Final Summary Order. The birth certificate is a record of vital statistics, and as such, is an exception to the hearsay rule pursuant to section 90.803(9), Florida Statutes (2017). The birth certificate lists Daryl’s weight at birth as three pounds, six ounces. The medical records obtained from St. Joseph’s lists Daryl’s weight at birth as 1,530 grams. Laufey Y. Sigurdardottir, M.D., the neurologist who reviewed the medical records for NICA and examined Daryl, confirmed that based on her review of the medical records, Daryl weighed 1,530 grams at birth. The only evidence of record is the birth certificate and the limited medical records, which identify Daryl’s birth weight as three pounds, six ounces, or 1,530 grams, and Dr. Sigurdardottir’s report and supplemental report, which also references Daryl’s birth weight as 1,530 grams. Petitioners, who bear the burden of proof, have submitted nothing to refute a determination that Daryl’s birthweight was below the 2,500 grams required for eligibility for a single gestation, or the 2,000 grams required for a multiple gestation birth, under the definition of birth-related neurological injury as defined in section 766.302(2).
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
Findings Of Fact Alyssa York was born on June 11, 2014, at Baptist Medical Center South located in Jacksonville, Florida. Alyssa weighed 4,026 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alyssa. In a medical report dated December 8, 2016, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia. The newborn was not depressed with a 5 minute Apgar score of 8. Resuscitation after delivery required only tactile stimulation and blow-by oxygen. The baby had an Erb’s palsy, but otherwise an uncomplicated newborn hospital course. 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. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Alyssa and to review her medical records. Dr. Sigurdardottir examined Alyssa on December 2, 2016. In a medical report regarding her independent medical examination of Alyssa, Dr. Sigurdardottir opined as follows: Summary: Alyssa is a 2-1/2 year-old who suffered a brachial plexus injury during a vaginal delivery complicated by a 1 minute shoulder dystocia. At the current age of 2 years 5 months she has a functional deficit that seems relatively mild and has not needed surgical intervention at this time. Her cognition, mental abilities seem age appropriate. In light of the above, my results are the following: Result as to question 1: Alyssa is found to have a mild physical impairment, but no noted mental impairment at this time. Result as to question 2: The brachial plexopathy is most likely due to injury sustained during the birthing process. Results as to question 3: The prognosis for full recovery is regarded [sic] as she continues to have functional limitations in her right arm. She however has normal abilities in other areas and her cognition is completely normal. In light of this, I do not recommend Alyssa to be included in the NICA program. I will be happy to answer additional questions. 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 contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Alyssa has a mild physical impairment but is not found to have a mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
