Findings Of Fact Based on the stipulation of Petitioner and Respondent, the following facts are found: Petitioner, Vanessa Augustin, is the mother of Owens St. Jacques, and is the “claimant” as defined by section 766.302(2). On or about October 22, 2015, Owens St. Jacques incurred a “birth-related neurological injury” as that term is defined in section 766.302(2). At birth, Owens St. Jacques weighed 2924 grams. Ezekiel Aderemi Osuntogun, M.D., rendered obstetrical services in the delivery of Ownes St. Jacques and, at all material times, was a “participating physician” as defined in section 766.203(7). University Community Hospital, Inc., d/b/a Florida Hospital Tampa, is a hospital located in Tampa, Hillsborough County, Florida, and is the “hospital,” as that term is defined in section 766.302(6), where Owens St. Jacques was born. Petitioner filed a petition pursuant to section 766.305, seeking compensation from the Florida Birth-Related Neurological Injury Compensation Association (NICA), and that petition, including all attachments, is incorporated in its entirety, by reference, into the parties’ stipulation. By stipulation of the parties, NICA has determined that the claim for benefits is compensable. Any reference in the stipulation to NICA encompasses, where appropriate, the Florida Birth-Related Injury Compensation Plan (the Plan).
Findings Of Fact Jesus Christopher Michael Camacho was born on November 29, 2011, at Shands Lake Shore Regional Medical Center located in Lake City, Florida. Jesus weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jesus. In a medical report dated April 8, 2015, Dr. Willis described his findings as follows: In summary, this baby had a birth related brain injury as documented by MRI findings of extensive brain hemorrhage by DOL 2. The oxygen deprivation and brain injury was a result of poor perfusion due to blood loss in a subgaleal hematoma that occurred at delivery. The FHR tracing during labor was not available for review, but attempt at vacuum delivery and Cesarean section were done for non-reassuring FHR pattern. It does not appear that brain injury occurred during labor or delivery, but the difficult delivery may have contributed to the eventual outcome. The oxygen deprivation and brain injury occurred during resuscitation in the immediate post-delivery period. The baby never stabilized immediately after delivery and required continuous resuscitation, including oxygen, intravenous fluid boluses and blood transfusions during the first day of life. The immediate post-delivery period would extend during this period of time, prior to stabilization. There was an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. I am not able to comment about the severity of the brain injury. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Jesus and to review his medical records. Dr. Fernandez examined Jesus on April 8, 2015. In a medical report dated April 14, 2015, Dr. Fernandez opined as follows: IMPRESSION: There is clear evidence for substantial mental and motor impairment that will be permanent due to mechanical and hypoxic- ischemic brain injury sustained during labor and delivery. Jesus’ brain injury is due, in large part, to his mechanically traumatic delivery that resulted in extensive brain hemorrhage. There was a lesser degree of brain injury due to oxygen deprivation as evidenced by a metabolic acidosis at birth and brain MRI abnormalities indicative of hypoxic-ischemic injury. Jesus has a spastic right hemiplegia causing substantial motor impairment. In addition, he has expressive speech, receptive language, executive function, and learning impairments that are substantial. 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 an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. Dr. Willis' opinion is credited. There are no opinions filed that are contrary to Dr. Fernandez’s opinion that there is clear evidence that Jesus sustained substantial mental and motor impairment that will be permanent due to mechanical and hypoxic-ischemic brain injury sustained during labor and delivery. Dr. Fernandez’s opinion is credited.
The Issue At issue in the proceeding is whether Demetrios Robertson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioner, Carmina Gilliam, is the mother and natural guardian of Demetrios Robertson, a minor. Demetrios was born a live infant on August 4, 1996, at University Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during the birth of Demetrios was Michael T. Valley, M.D., who, at all times material hereto was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . 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." Section 766.302(2), Florida Statutes. Here, the proof failed to demonstrate that Demetrios suffered a permanent and substantial mental and physical impairment. Consequently, it is unnecessary to address whether he suffered an injury to the brain caused by oxygen deprivation or mechanical injury and, if so, whether such injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Demetrios' current mental and physical presentation To address the character of Demetrios' neurologic presentation, Petitioner offered selected medical records relating to Demetrios' birth and subsequent development, as well as the opinions of Demetrios' treating pediatric neurologist, Daniel E. Shanks, M.D. In turn, Respondent offered the opinions of Michael Duchowny, M.D., a pediatric neurologist who examined Demetrios on January 17, 2001. As noted, on January 17, 2001, following the filing of the claim for compensation, Demetrios was examined by Dr. Duchowny. Pertinent to this case, the results of that evaluation were reported as follows: PHYSICAL EXAMINATION reveals Dem[e]trios to be alert, pleasant and cooperative. His weight is 55 pounds and height 32 inches. There is a single cafe-au-lait spot over the left midabdominal region. There are no dysmorphic features and no other cutaneous stigmata. The spine is straight without dysraphism. The head circumference measures 50.4 cm and there are no craniofacial anomalies or asymmetries. The fontanelles are closed. The neck is supple, without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION: Dem[e]trios' neurological examination reveals him to be quiet but cooperative. He does have a short attention span but he is easily engaged and tends to complete requests without flinching. His speech output is noticeably diminished and he tends to speak in short phrases with poorly articulated words. He does not know primary or secondary colors and has a limited command of knowing the names of animals. He does identify body parts well. There is no evidence of overactivity. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi. The pupils are 4 mm, react briskly to direct and consensually presented light. The optic disc margins are well- marginated with normal coloring. The tongue and palate move well and there is no drooling. Medical examination reveals mild spasticity of the lower extremities with some tightening of the heel cords. Dem[e]trios barely dorsiflexes the feet past neutrality and he has slight Babinski attitudes of the big toes. In contrast, the tone in the upper extremities is relatively normal. He has trouble with rapid alternating movement sequences and demonstrates mild decomposition. There is no focal weakness or atrophy. Dem[e]trios walks in a single fashion although there is eversion of his feet. The deep tendon reflexes are brisk and 2+ at the knees, brachioradialis and biceps. There are one or two beats or reduplication at the ankles and quite positive Babinski signs. There is no abductor spasticity. His gait is stable but he tends to posture both arms. He has difficulty walking on tip toes or heels. Romberg sign is absent. The neurovascular examination reveals no cervical, cranial, ocular bruits and no temperature or pulse asymmetries. Sensory examination was deferred. IN SUMMARY, Dem[e]trios' neurologic examination reveals evidence of moderate developmental delay, particularly in the area of language functioning. He additionally has evidence of mild lower extremity spasticity indicating a mild spastic diparesis. At a deposition held August 28, 2001, and received in evidence as Respondent's Exhibit 1, Dr. Duchowny expanded on the results of his examination and conclusions regarding the character of Demetrios' presentation, as follows: BY MR. CULPEPPER: * * * Q. . . . What were your conclusions regarding Demetrios' neurological condition? A. Having performed the evaluation and reviewing the medical records, I felt that Demetrios has neither a substantial mental nor motor impairment. Q. . . . Is Demetrios impaired? A. I believe that he does have evidence of impairment, yes. * * * Q. . . . Does Demetrios have a permanent injury? A. Yes, I believe he does. Q. Is he mentally impaired? A. I think he has developmental delay. I am using the term to distinguish it from brain damage. I think his language is behind age level, but will probably progress and continue to improve. Q. I will focus on the context of NICA. How would you quantify the seriousness of Demetrios' mental impairment? A. I would call it mild to moderate. Q. Okay. So you would not consider Demetrios' mental impairment, quote, unquote, "significant" in terms of NICA? A. That's correct. Q. Why not? A. Because he probably functions within a high -- in the high end of kids with disabilities. He basically would be mild to moderately impaired by school standards, and he is not mentally retarded. Q. To follow up, describe what you would consider a, quote, unquote, "significant" mental impairment in terms of the NICA statute? A. Well, he would have to be -- function within the mentally retarded range, and I regard him more as having evidence of language delay. Otherwise, he seems socially intact and he does well. Q. Now I'll turn to Demetrios' physical condition. Is Demetrios suffering from a physical impairment? A. Yes. Q. In the context of NICA, how would you quantify the seriousness of Demetrios' physical impairment? A. I believe he has a mild physical impairment of his legs. Q. Again, in the context of the NICA statute, would you consider Demetrios' physical impairment, quote, unquote, "significant" MR. SCHACK: Let me object to the language and the form of the question. You keep using the word "significant," and I think the language is "substantial." MR. CULPEPPER: I apologize, and thank you for pointing that out. Let me switch the words then. Q. (By Mr. Culpepper) Do you consider his impairment substantial in terms of NICA? A. No. Q. And why not? A. Because in the spectrum of what we see of motor impairment, this is simply not a substantial motor impairment. He would have to be more spastic, more involved with greater compromise of his functionality. Q. And then to clean up my error, going back to mental impairment, would you consider Demetrios' mental impairment "substantial," quote, unquote, in terms of the NICA statute? A. No, I would not. BY MR. SCHACK: * * * * * * Q. . . . When you use the terms mild, moderate, and severe, is that medical terminology? A. Well, it's not a medical dictionary word, but I think it is a modifier that tries to categorize a patient within the scope of disability that we see. Q. Well, Doctor, if this was your patient, would you just describe the neurological findings and the problems the child had rather than trying to modify it by an adjective? A. No. We always modify with an adjective. Q. Okay. A. Apart from NICA, we do that. * * * Q. It appears in this case to me, correct me if I am wrong, that regardless of whether you describe it as mild, moderate, or severe, that Demetrios has some motor difficulties that might impact on his ability to live a normal life. A. You mean lifespan or just life functions? Q. That was a -- life function. A. They might, yes. Q. Okay. He at the present time has lower motor problems, lower extremity motor problems; is that correct? A. Yes. Q. And exactly what is his problem? A. He has spasticity, mild, of his legs. Q. What does that prevent him from doing? A. Being agile, running fast, being a competitive athlete. Q. Okay. Does it give him difficulty walking? A. Yes. Q. Okay. And he can't stand straight? A. Right. Q. All right. Would you say that is a substantial problem for a child such as Demetrios? A. I think he's going to get better with time. I think he's going to be able to do most of the things he wants to do. Q. But at the present time he's unable to do things he wants to do; is that correct? A. I'm sure that's true . . . . Demetrios was last examined by his pediatric neurologist, Dr. Shanks, on October 18, 2001. Dr. Shanks reported the results of that evaluation, as follows: . . . [Demetrios] has always had a tendency to walk up on his toes since he began walking at approximately 14 months of age. It has not progressed over time. He may be a little tighter in the right than the left and he did go through physical therapy during earlier years. * * * On physical examination, height 105 cm (10th to 25th %); weight 22 kg (75th to 90th %); head circumference 51 cm (50th %). Generally, he is a well-appearing, alert youngster who is generally cooperative. There are no cranial or carotid bruits noted. Neck is supple with full range of motion. He has full primary dentition. There are no chest deformities other than a well-healed scar on his left infrascapular region inside. Abdomen is mildly obese. Extremities have full range of motion with the exception of ankles that have slight restriction in dorsiflexion, right slightly more so than the left, and there is a little bit of tightness in hip adductors. There are no asymmetries of his extremities. Back is without midline lesions. He has two hyperpigmented macular lesions, one of his abdomen and one on his back. NEUROLOGIC EXAM: Speech is fluent but mostly just one to two-word utterances. He does follow simple commands readily. Cranial nerves pupils equal, round and reactive to light; discs are sharp with normal appearing vessels. Extraocular movements are full and conjugate. Facial muscle movements full and asymmetric. Hearing is normal to low-level stimulation bilaterally. Palate elevates symmetrically; sternomastoids are strong and tongue is midline. Motor exam shows normal tone with the exception of his distal lower extremities and a possible slight spastic catch in his hip adductors. Upper extremity tone feels relatively normal. Deep tendon reflexes are 2+ in the upper extremities, 3- 4+ lower extremities with crossed adductors. Ankle jerks are 1+ and toes are upgoing bilaterally, more strongly on the right than the left. With gait, he does have a tendency to get up on his toes slightly but is very functionally mobile. Sensory exam is intact to touch, cold and vibration. He has no cerebellar signs or adventitial movements. IMPRESSION: Likely mild spastic diplegia with overall relatively good prognosis for functional capabilities. He also seems to have significant cognitive delays . . . . Considering the proof, it must be resolved that Petitioner has failed to demonstrate, more likely than not, that Demetrios is permanently and substantially mentally and physically impaired.1 Notably, Doctors Duchowny and Shanks share strikingly similar views regarding the characterization of Demetrios' physical presentation, and concur that his physical impairment can best be described as mild. With regard to Demetrios' mental impairment, Dr. Duchowny was of the view that Demetrios was developmentally delayed, but would likely improve, and that his impairment could best be described as mild to moderate. In contrast, Dr. Shank's was of the view that Demetrios "seems to have significant cognative delays"; but did not otherwise characterize Demetrios' impairment. Stated otherwise, Dr. Shank's did not express an opinion as to whether Demetrios' mental impairment could best be described as mild, moderate, or severe, and expressed no opinion as to whether Demetrios' impairment was or was not likely to improve.
