The Issue The issue to be determined is whether the infant, Miguel Nunez, Jr. (Miguel Jr.), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2017).
Findings Of Fact On March 15, 2018, Casandra Nunez gave birth to a baby boy named Miguel Jr. The birth certificate attached to the Petition for Benefits, and the medical records from St. Joseph’s supplied by Petitioners, indicate that Miguel Jr. weighed one pound, nine ounces, or 700 grams, at birth.
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 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 to be determined is whether the infant, Zakeem Carter Lee (Zakeem), suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2018).
Findings Of Fact Zakeem was born on December 25, 2018, at Holmes Regional. He passed away shortly after birth. Zakeem weighed 2,425 grams at birth.
The Issue At issue is whether Hope Maranda Bennett, a minor, met the minimum birth weight required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact As observed in the Preliminary Statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. In contrast, NICA offered the testimony of Kathe Alexander, R.N., and the medical records associated with Hope's birth (Respondent's Exhibit 1), which demonstrated that Hope was the product of a single gestation, and that she weighed 2,204 grams at birth.
