Findings Of Fact Landon Pillow was born on November 29, 2010, at North Florida Regional Medical Center in Gainesville, Florida. Landon weighed 3,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Landon, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows: In summary, there was a non-reassuring FHR pattern during labor. It is unlikely this resulted in any significant oxygen deprivation to the fetus, based on a cord blood gas pH > 7.0 and a normal newborn hospital course. Babies with birth related hypoxic brain injury will generally have multi-organ failures during the newborn period. 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. Dr. Willis reviewed additional medical records on January 16, 2014, and, based on his review of those records, opined as follows: The additional records do not change any of my opinions concerning this case. The child suffered a brain injury, but the etiology is still undetermined. Based on the cord blood gas pH > 7 and a normal newborn hospital course after delivery, it does not seem reasonable to time the brain insult as birth related. NICA retained Michael S. Duchowny, M.D., to examine Landon and to review his medical records. Dr. Duchowny examined Landon on April 30, 2014, and gave the following opinion: In summary, Landon’s neurological examination today was extremely limited because of his postictal state. However, there were no specific focal or lateralizing findings despite the history of a left hemisphere infarct and porencephalic cavity. A review of medical records sent on February 26, 2014 confirms the history obtained today which revealed no evidence of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery, or the immediate postnatal period. Landon’s cord blood pH was 7.25 and the base excess was -4. Both values are near-normal. Although the neurological examination was suboptimal, the history obtained today from the family and from medical records indicate that Landon’s neurological impairment was acquired prenatally. I therefore believe that he should not be considered 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 opinions of Dr. Willis and Dr. Duchowny that there was no obstetrical event that resulted in injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. Their opinions are credited.
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
The Issue Whether Jaden Myers qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Leigha Myers and Curtis Myers are the natural parents and guardians of Jaden Myers, a minor. Jaden was born a live infant on November 13, 2008, at Southern Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center hereafter, Baptist Medical Center, a licensed hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services at the time of Jaden's birth was Mitzi Brock, M.D. Dr. Brock was, at all times material, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. Notice is not a contested issue in this case. Mrs. Myers' prenatal course was complicated by pregnancy-induced hypertension. She was admitted to Baptist Medical Center on November 13, 2008, at 40 weeks' gestation, for induction of labor. Mrs. Myers was admitted at 7:24 a.m., on November 13, 2008. Oxytocin (Pitocin) IV was started at 7:44 a.m. At 8:47 a.m., Mrs. Myers' membranes were artificially ruptured by Dr. Brock, and clear fluid was noted. A vaginal exam was performed at 8:49 a.m., with findings indicating Mrs. Myers was 3-4 cm dilated; 60% effaced and at a -2 station. Fetal movement was reported and audible. The same day, between 8:57 a.m., and 11:13 a.m., the Pitocin dosage was increased from 6 mu/min to 14 mu/min. At about 11:57 a.m., the infant had an episode of bradycardia.2/ An epidural bolus was administered at 12:07 p.m. (Noon+). A vaginal exam was performed at 12:17 p.m., with findings indicating that Mrs. Myers was 4 cm dilated; 80% effaced and at a -2 station. At 1:36 p.m., an oxygen face mask was started as a fetal intervention. Mrs. Myers' labor continued to progress, and a vaginal exam at 2:26 p.m., indicated she was 4-5 cm dilated; 90% effaced and at a station -2. A vaginal exam was performed at 3:15 p.m., indicating that Mrs. Myers was 7 cm dilated; 90% effaced and at a -2 station. At this time, Dr. Brock also reviewed the fetal monitor strips. At 4:17 p.m., a Foley catheter was placed in preparation for a cesarean section. Another vaginal exam was performed at 5:24 p.m., indicating the mother was 7-8 cm dilated; 90% effaced and at a -2 station. Dr. Brock was at Mrs. Myers' bedside and performed another vaginal exam at 7:09 p.m. This examination indicated Mrs. Myers was 9-10 cm dilated and 100% effaced. At 7:29 p.m., Dr. Brock indicated that she would try to rotate the infant. Mrs. Myers began to push, starting at 7:30 p.m., and continued pushing with contractions until 8:30 p.m. The fetal monitor strips reveal that the infant experienced an episode of tachycardia3/ between 7:50 p.m. and 7:53 p.m. While Mrs. Myers was pushing between 7:30 p.m., and 8:30 p.m., the Kiwi vacuum extractor was positioned and there were four pop-offs at 8:01 p.m., 8:04 p.m., 8:10 p.m., and 8:21 p.m. At 8:31 p.m., the baby's head was out. Supra pubic pressure and the McRoberts maneuver were used, resulting in delivery of Jaden Myers at 8:32 p.m. Delivery complications included shoulder dystocia suprapubic pressure, McRoberts maneuver and possible right clavicle fracture with limp right arm. Jaden's Apgar4/ scores were 1 at 1 minute; 3 at 5 minutes; and 6 at 10 minutes. There was evidence of acidosis. At 8:33 p.m., Jaden was bagged and masked. He was transferred to NICU with oxygen bagging and masking in progress at 8:41 p.m. He was admitted to NICU at 8:42 p.m., for neonatal depression and was noted to be cyanotic, depressed, floppy and flaccid in minimal respiratory distress. A subgaleal hemorrhage was present, as was a denuded scalp lesion and vacuum mark. Jaden had generalized decreased tone and activity. Delivery complications included shoulder dystocia and deep variable decelerations. At two minutes of age, Jaden was very pale, receiving oxygen with bag mask with chest compressions at 45 seconds of age for initial heart rate of 40. Color improved slightly, and his heart rate increased to 100. By five minutes of age, Jaden had been intubated. At 10:40 p.m., Jaden was approximately two hours old. At that time, he was assessed as having a head circumference of 36 cm. His scalp abrasions were covered with tegaderm, and Cool Cap equipment was applied per protocol. At 11:00 p.m., Jaden had bicycling-like movements of his arms and legs, which did not stop with touch. At 11:30 p.m., he was noted to have mild, intermittent grunting. At 11:52 p.m., Phenobarbital was administered for continuous movement of his arms and legs. Jaden continued with bicycling movements of his arms and legs at 12:45 a.m., on November 14, 2008, and at 1:10 a.m., another dose of Phenobarbital was administered. The medical record reflects that there were no further bicycling movements after the second dose of Phenobarbital. Jaden remained on the Cool Cap until November 17, 2008, when it was removed at 6:00 a.m., and he was rewarmed. Scalp abrasions and weeping were noted. A CT scan performed on November 17, 2008, at 12:44 p.m., identified extensive cephalohematoma; trace amounts of hyperdense hemorrhage beneath the left coronal suture; hyperdensity of the tentorium, which could represent a trace amount of subdural hematoma; obliteration of both external auditory canals, secondary to soft tissue swelling/hemorrhage with fluid in both ears. According to the NICU Discharge Summary, Jaden's hospital course from November 13, 2008, through November 26, 2008, was complicated by respiratory distress, metabolic acidosis, hypoperfusion, disseminated intravascular coagulation, thrombocytopenia, seizures, jaundice surveillance, renal dysfunction, hyperglycemia, and hypocalcemia, all of which subsequently resolved themselves prior to discharge. Upon Jaden's discharge, diagnoses included anemia, neonatal depression, subgaleal hemorrhage and fracture of the clavicle. Nonetheless, despite what on its face appears to be a difficult delivery, Jaden's development has continued to improve as he has grown. Jaden has been followed by Dr. Rodolfo Pena- Ariet, a pediatrician with Northeast Florida Pediatric Association, P.A., from November 29, 2008, to the present. Jaden has been treated for normal childhood illnesses and has met all of his developmental milestones. On January 4, 2009, David O. Childers, M.D., University of Florida, Department of Pediatrics, Division of Developmental Pediatrics, gave Jaden a newborn neurobiologic risk score of "three," whereby a score of greater than "six" indicated the child was at risk. Jaden scored a "one" or "normal" for sensory and behavioral response, axial tone, extremity tone, deep tendon reflexes and primitive reflexes for an overall combined score of "five." A core of "five to eight" indicates low risk. However, Dr. Childers diagnosed Jaden with torticollis,5/ recommended physical therapy and made a referral to the Early Intervention Program for evaluation. A referral was made on January 26, 2009, to "Early Steps" for a developmental evaluation. "Early Steps" is Children's Medical Services' Early Intervention Program provided by the Department of Pediatrics of the University of Florida, and sponsored by the Florida Department of Health. In addition, on March 19, 2009, Jaden's well-child visit at four months of age indicated that he was doing well, being seen by Dr. Childers, Early Steps, and Brooks Rehabilitation and that his only problem was torticollis. According to his chart, subsequent well-child visits with Dr. Pena-Ariet did not identify any concerns for Jaden's growth and development. On February 12, 2009, Mr. and Mrs. Myers had concerns regarding Jaden's motor development, and regarding the diagnosis of torticollis, as well as concerns regarding his overall development as might be observed by clinicians. During the evaluation, Jaden was holding his head turned to the left, or when his head was midline, it was flexed to his right shoulder. His thumbs tended to be flexed into his palms. Jaden was referred to Brooks Rehabilitation to work at being able to turn his head in all directions when on his tummy, when on his back, or when he was held so that he could explore and interact with toys and people in his everyday activities. The goal for achieving these improvements was set variously at May 2009 and August 2009. Jaden received physical therapy at Brooks Rehabilitation, a provider of physical therapy, from March 12, 2009, until May 21, 2009, for torticollis affecting his right side. Jaden's evaluation on March 12, 2009, found that he kept his head rotated to the left side on "pull to sit" (head lag), but that he was able to keep his head in line with his trunk with no head lag. His head's range of motion in supine position was limited to right rotation when turning his head to track objects. Jaden also kept his head rotated to the left side when holding his head midline with supported sitting. However, physical therapist Shawn T. Hubbard noted in the Discharge Summary dated May 27, 2009, that Jaden and his caregiver (mom) had attended all sessions; that Jaden had shown an improvement with his cervical range of motion, both actively and passively; that he was able to sit supported for short periods of time with good head control; and that he had completed his treatment program. There have been no subsequent physical therapy sessions. In his Follow-Up Neurodevelopment Assessment, dated May 4, 2009, Dr. Childers indicated that at 5.75 months of age, Jaden was saying one word other than "mama" and "dada"; was able to support himself on his forearms in prone position and support himself on his wrists in prone position; and that Jaden had full range of motion with his extremities. Also, Jaden's muscle bulk, power and tone were age appropriate. His fine motor skills, including grasp and release, finger opposition and finger-to-nose skills were normal. Jaden's gross motor skills, including gait and tandem gait were normal. "Sit-to-stand" was normal. His unipedal stand and single leg hop was normal. Follow-up was recommended in one year. On August 10, 2009, Ellen Hopkins of the Northeastern Early Steps Program indicated on the Individualized Family Support Plan Periodic Review that Jaden had successfully reached his outcome by being able to turn his head in all directions and was now very mobile, crawling and pulling-up without any difficulty. Jaden was subsequently released from physical therapy because he had reached his goals. On February 12, 2010, Jaden's file at Early Steps was placed on inactive status. On November 2, 2010, at age 23 months and 13 days, Jaden was again assessed by Dr. Childers, using the Bayley Scales of Infant and Toddler Development, Third Edition. Upon cognitive testing, Jaden could discriminate between objects; regard an object continuously for five seconds; show visual preference; habituate to an object within 30 seconds; prefer to look longer at a novel object; habituate to picture and prefer a novel picture; take blocks out of a cup; engage in relational play to self and others; had visual displacement; could attend to a whole story; had pegboard series testing; object assembly; picture matching; representational and imaginative play; understand the concept of one; and engage in multi-scheme combination play. Dr. Childers' testing further indicated that Jaden's receptive language abilities included interaction with others; that he could identify pictures and three items of clothing; identify action pictures and five body parts; follow two-part directions; understand the use of objects; and understand pronouns. Regarding expressive language, Jaden was able to use two words appropriately, use at least one word to make his wants known; combine a word or gesture; name pictures; use eight words appropriately; answer "yes" and "no" in response to questions; imitate a two-word utterance; make a two-word and multiple word utterance; and use pronouns. Jaden's fine motor skills at that time of testing with Dr. Childers included: stacking a series of blocks; imitating strokes with a crayon, horizontally and vertically; placing ten pellets in a bottle within 60 seconds; transitional grasp with crayon or pencil; placing three coins in a slot; taking blocks apart; using his hand to hold paper in place while scribbling; and connecting a series of blocks. His gross motor skills included the ability to: throw a small ball forward; squat without support; stand up without support; walk up and down stairs; walk backward and forward; run with good coordination; balance on one foot, right and left; walk sideways; jump from bottom step and kick a large ball. Respondent offered, via deposition, the findings and expert opinion of Dr. Michael S. Duchowny, a board-certified pediatric neurologist, who reviewed and analyzed Jaden's medical records and who had personally performed an independent medical examination of Jaden on February 3, 2010, when Jaden was fourteen months old. Dr. Duchowny did not believe that Jaden had any permanent and substantial mental or physical impairments as of the age of fourteen months. He further testified that at the time of his evaluation, Jaden's parents indicated that he had met his age-appropriate developmental milestones. Based on Dr. Duchowny's evaluation and review of the records, the acidosis and any oxygen deprivation that Jaden may have experienced during the birthing process has not had any permanent or substantial impact on him. These expert opinions are demonstrated by the following excerpts from Dr. Duchowny's deposition of August 4, 2011: [Dr. Duchowny] . . . The neurologic examination revealed him [Jaden] to be an alert, cooperative and socially interactive boy. He was curious, he was easily engaged. In fact, he sat quietly in his father's lap and he did make sounds, but I did not hear him speak words. There was a slight amount of drooling, very small. His cranial nerve examination was essentially normal, as detailed in the report. Similarly, the motor examination revealed full strength. Muscle bulk and tone was also normal. There were no abnormal movements, no weakness. He actually walked fairly steadily for his age, he didn't fall, and he climbed well. He had age-appropriate manual dexterity with both hands. He had good fine motor movements and thumb/finger opposition. He could transfer an object between his hands and did not show a hand preference. That was all normal. His sensory examination was also normal. There were no abnormalities of his neurovascular examination and, essentially, my impression of these findings was that his neurological examination was normal for developmental age. Q. All right. And would you describe his physical examination as normal as well? A. Yes, sir. In fact, both the physical and neurological examinations were absolutely fine. Q. Would you consider your findings consistent with what you read in the deposition transcripts from the parents as to how they described Jaden's growth and development and how he was performing at the time of those depositions? A. I would, yes. Q. In other words, your findings are consistent with their own perspective as to how Jaden was doing and what, if any, issues he may be experiencing? A. Yes, sir. Q. Based on your review and examination of Jaden, did you form an opinion as to whether or not he suffered from any permanent and substantial mental impairment? A. In my opinion, he had neither a substantial mental nor substantial motor impairment. Q. Based on your examination, did you form an opinion as to whether or not he would qualify for coverage under the NICA program? A. Based on my understanding of the NICA program requirements--and that is that in order to be eligible a child should suffer from a permanent mental--a permanent and substantial mental and physical impairment. I felt that Jaden did not qualify for eligibility into the NICA program. (Exhibit N: Depo. pages 14-16; Bates 1573- 1575) * * * Q. . . . At the end of your report--and I think it may have been attached as an exhibit now to the deposition--of February 3, 2010, you write his, meaning Jaden, "his neurological examination today is entirely normal." Entirely normal for a fourteen-month old? A. Yes, sir. Q. Is that what you meant? A. Yes, sir. Q. And so you were asked by Mr. Bajalia what your conclusion was and you said that he had neither a substantial mental or motor impairment. At the time you examined him, did Jaden have any mental impairment that you could identify? A. No, sir. Q. Did he have any physical impairment that you could identify? A. No. * * * Q. Okay. Now in your initial discussion of your February 3, 2010 report, you talked about the medical history that was obtained from the parents. You talked about his growth and developmental parameters and the fact, from the parents' perspective, they were all normal. Do you recall that? A. Yes. (Exhibit N: Depo. pages 28-29; Bates 1587-1588) (emphasis added). Leigha Myers' deposition testimony further shows that, despite Jaden's initial hospital course, he has shown no physical or mental impairments, but rather, has grown up as any other child. Specifically, Mrs. Myers testified on May 18, 2011, as follows: Q. . . . Tell me as his parent generally how--how he is doing now. A. He seems to be doing what every other kid does that I know of. Q. When you say he seems to be doing what every other kid is doing that you know of, it is your opinion that he appears to be normal from a physical standpoint? A. Yes. Q. Does he appear to be normal from a mental perspective? A. Yes. Q. Or cognitively? A. Yeah. Q. . . . From a physical perspective, what, if any, issues does he have? A. He doesn't have any that I know of right now. Q. . . . And from a mental perspective, or cognitive perspective, what, if any, issues does he have? A. None that I know of-- Q. Okay. A. --at this time. Q. As his parents--as his parent, are there any concerns from your perspective from a developmental perspective as far as Jaden is concerned? A. No, no. (Exhibit M: Depo. pages 8-9; Bates 1533-1535) Jaden's mother also denied that there were any chronic physical developmental issues for which Dr. Pena-Ariet is currently treating Jaden; that there is any ongoing physical therapy for Jaden; and that Jaden was ever below the standard child development curve for growth and development. She also acknowledged that on formal testing "of everything" (presumably cognitive and physical abilities) Jaden scored "average or better." Q. Has Jaden had any formal testing done to assess his cognitive level or abilities? * * * A. [Mrs. Myers] Yes, I think it was kind of everything. He had, like, a book he had to go through, to do all these little tests and stuff, but he--he scored average on it-- Q. Okay. A. --like average or better. Q. Were there any issues or concerns that were relayed to you about his development as a result of that testing? A. No. (Exhibit M: Depo pages 28-29; Bates 1553-1534) Leigha Myers further testified that Jaden had physical therapy to resolve an issue with torticollis after he was born but that he has not required speech therapy, occupational therapy or any additional therapies. Jaden has also never seen a neurologist. She does not believe Jaden will need physical or occupational therapy in the future. According to Curtis Myers, Jaden's father, who also testified via a May 18, 2011, deposition, Jaden is physically active playing horseshoes and basketball and appears to have met his developmental milestones, as follows: * * * Q. . . . And you know, from a physical perspective, when you guys play outside, he doesn't appear to have any issues running? A. [Curtis Myers] No. Q. Or jumping? A. No. Q. Or picking up objects like a horseshoe? A. No. Q. And throwing it? A. No. * * * A. Right. I think as far as physically, he seems to be fine. (Exhibit L: depo pages 10-12; Bates 1513-1515) * * * Q. And while you don't remember the exact timing or dates as to when he met those milestones, to your knowledge, did he meet his milestones and develop normally? A. Yes. He--you know, it's funny, because, I mean, he had someone to compare it to with his little friend Isaac being two years old and they were real close together as far as a lot of stuff. Isaac seems to be a little bit ahead of Jaden somewhat, but they're pretty close as far as the developmental type stuff. Q. Nothing that would cause you any concern? A. No. Q: Okay. A. Makes you proud. (Exhibit L: Depo. Pages 17-18; Bates 1520-1521) While no one disputes that Jaden had a difficult delivery, given the record, it is resolved that Jaden does not suffer from permanent or substantial mental or physical impairments.
Findings Of Fact Bryan Alavez was born on August 7, 2011, at Tampa General Hospital located in Tampa, Florida. Bryan weighed 4,590 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bryan. In a medical report dated July 14, 2014, Dr. Willis opined as follows: In summary, the mother had poorly controlled Gestational Diabetes, which most likely resulted in the large for gestational age (macrosomic) newborn and resulting shoulder dystocia. Umbilical cord blood gas was within normal limits, suggesting the baby did not have hypoxia during labor. However, newborn depression occurred, most likely related to shoulder dystocia. The Apgar was 0 at one minute. Chest compressions and bag and mask ventilation were required at birth. The baby improved and was taken to the NICU with respiratory depression requiring nasal canula oxygen. A fractured humerus occurred at time of shoulder dystocia delivery. The baby did not have seizures. Encephalopathy was not suspected. Imaging studies of the brain were not done. The fetus did not suffer oxygen deprivation or mechanical trauma to the brain during labor. Some oxygen deprivation may have occurred as a result of the shoulder dystocia, as indicated by an Apgar score of 0 at one minute. However, there is no documentation that any significant brain injury resulted from this possible oxygen deprivation. There was an apparent obstetrical event, shoulder dystocia, but this does not appear to have resulted in any significant loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery, or the immediate post delivery period. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Bryan and to review his medical records. Dr. Fernandez examined Bryan on September 15, 2014. In a medical report regarding his independent medical examination of Bryan, Dr. Fernandez opined as follows: IMPRESSION: Despite transient neurological depression immediately after birth, there is no evidence for substantial mental and motor impairment due to oxygen deprivation or mechanical injury of brain or spinal cord during labor, delivery, or within the immediate postdelivery period of resuscitation. This opinion is based on record review and clinical history and physical and neurodevelopmental examination. There was no suspicion of perinatal encephalopathy while in the NICU or after discharge. Imaging of the brain and spinal cord has not been necessary. Bryan sustained a fracture of his left humerus as a complication of shoulder dystocia and there was question of left brachial plexus injury causing left arm weakness. He appears to have subtle residual left upper extremity proximal weakness. This is due to mechanical injury of peripheral nerves (brachial plexus). It is not due to oxygen deprivation or mechanical injury of brain or spinal cord. 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 an apparent obstetrical event, shoulder dystocia, but this event does not appear to have resulted in any significant loss of oxygen or mechanical trauma to the baby's brain 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. Fernandez’s opinion that although Bryan appears to have subtle residual left upper extremity proximal weakness, this is due to mechanical injury to peripheral nerves, and is not due to oxygen deprivation or mechanical injury of the brain or spinal cord. Dr. Fernandez’s opinion is credited.
The Issue At issue in this proceeding is whether Gordon Quinn Kowlessar, 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 Carmen L. Diaz and Andrew Kowlessar are the parents and natural guardians of Gordon Quinn Kowlessar (Gordon), a minor. Gordon was born a live infant on August 26, 1997, at Halifax Medical Center, a hospital located in Daytona Beach, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Gordon were Linda Hensley, M.D., assisted by Julia Harris, M.D., and they were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury 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 hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the parties agree that Gordon suffered an injury to his brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period which rendered him permanently and substantially physically impaired. Consequently, the sole issue to resolve is whether such injury likewise resulted in permanent and substantial mental impairment. As to that issue, Petitioners are of the opinion that Gordon's mental development is age appropriate, and Respondent is of the opinion that, at the present time, Gordon's mental status can not be adequately assessed. Gordon's neurologic condition On October 23, 1998, following the filing of the claim for compensation, Gordon was examined by Michael Duchowny, M.D., an expert in pediatric neurology. At the time, Dr. Duchowny was unable to reach an opinion regarding Gordon's mental status for two reasons. First, Gordon was quite young to perform such an assessment. Second, Gordon had a significant motor impairment which made, at his age, the assessment of mental status difficult. Consequently, Dr. Duchowny was unable to offer an opinion as to whether Gordon's brain injury also produced permanent and substantial mental impairment. The infant's mother, Carmen L. Diaz, based on her observations and experience, expressed the opinion that Gordon's mental status or function was normal or, stated differently, age appropriate. Such opinion was premised on Gordon's language development, as well as his reaction/interaction with others and his environment, which in Ms. Diaz's opinion failed to reveal any delay in development of his mental functions. Apart from the observations of Dr. Duchowny and Ms. Diaz, the parties also offered certain medical records pertaining to Gordon's birth and subsequent development (Petitioners' Exhibit 1); however, these records do not provide any meaningful assessment of Gordon's mental status. Indeed, consistent with Dr. Duchowny's observations, they reveal that due to Gordon's motor impairment, a meaningful assessment of his mental status, at the time, was difficult.
Findings Of Fact Isabella Delvalle was born on January 17, 2012, at Orange Park Medical Center in Orange Park, Florida. Isabella weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Isabella’s medical records. In a medical report dated May 30, 2015, Dr. Willis made the following findings and expressed the following opinion: Additional medical records from Baptist Hospital were reviewed (pages 618-1546). As discussed in the previous report, dated 04/07/2015, the baby was delivered by Cesarean section following failed attempt at vacuum delivery. Apgar scores were reported as 8/9. Cord blood gas had a normal pH of 7.26. This would suggest there was no oxygen deprivation during labor or delivery. An ARNP was present at delivery to manage the newborn. The baby was felt to be stable enough that the nurse left the delivery room at about two minutes after delivery to assist with another delivery. When she returned after about five minutes, the baby was having some respiratory distress. The baby was transferred to the NICU for observation. Seizure activity developed within about 24 hours of life. EEG was abnormal and consistent with seizure activity. MRI on DOL 3 was reported as normal. Two additional MRI’s over the next few months were also reported as normal. However, MRI at four months of age showed enlargement of the lateral ventricles since the prior exam and was consistent with brain volume loss. Genetic evaluation was negative. Microarray was negative. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor or delivery. I do not have any opinion about oxygen deprivation during the immediate post delivery period. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby’s brain during labor or delivery is credited. Respondent retained Raymond Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to evaluate Isabella. Dr. Fernandez reviewed Isabella’s medical records and performed an independent medical examination on her on February 2, 2015. Dr. Fernandez made the following findings and summarized his evaluation as follows in a medical report dated February 10, 2015: IMPRESSION: There is ample evidence for substantial mental and motor impairment that is likely to be permanent, but etiology is unknown. Based on record review, history and physical examination, etiology cannot be determined at this time. There is no evidence in the medical record made available to me for brain or spinal cord injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post delivery period of resuscitation. However, note that I have not yet reviewed the Wolfson’s Children’s Hospital NICU admission, nor have I reviewed brain imaging studies presumably performed while at Wolfson’s. Records and imaging studies have been requested and an addendum to this report will be sent to NICA upon further review. On April 12, 2015, Dr. Fernandez wrote an addendum to the above medical report after reviewing additional records: I recently received records from Wolfson Children’s Hospital where Isabella was admitted on January 18, 2012 and discharged on May 24, 2012 and two additional admissions to the hospital were reviewed. Also reviewed were brain imaging studies, including two brain CTs and four brain MRIs. * * * In conclusion, as previously states [sic] there is ample evidence for substantial mental and physical impairment that likely will be premanent. However, etiology is unknown. There is no evidence in the record for oxygen deprivation or mechanical injury during labor, delivery, or the immediate post delivery period of resuscitation to be the explanation for Isabella’s substantial mental and motor impairment. There was a small amount of subdural blood within the posterior fossa, but this was not of clinical significance. This bleeding probably occurred during labor and delivery and was possibly due to the attempted vacuum extraction that was unsuccessful. Again, this is not felt to be clinically significant. There is no evidence for parenchymal brain hemorrhage, brain swelling, or brain injury due to oxygen deprivation or mechanical injury. Dr. Fernandez’s opinion that there is no evidence of oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period of resuscitation to be the explanation of Isabella’s substantial mental and motor impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Fernandez that there was no obstetrical event that resulted in oxygen deprivation or mechanical injury to the baby’s brain during labor, delivery or the immediate post-delivery period.
The Issue At issue in this proceeding is whether Cortina Fountain, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Ann Williams' prenatal course and the birth of Cortina Fountain Due to a paucity of proof, little is known of Ann Williams' prenatal care except that at or about 6:10 a.m., August 3, 1992, she was seen at Waterman Medical Center, Eustis, Florida, for a prenatal progress check. 1/ At the time, Ms. Williams complained of contractions at 15 minute intervals, dilation was noted to be "1-2, thick, high;" and fetal heart tone was noted to be in the 130 beat per minute range. The midwife was called, and upon receipt of her orders Ms. Williams was discharged home with instructions "to call Tavares Clinic today to be seen." At 12:15 p.m. that day, Ms. Williams, while at home, precipitously delivered her child, Cortina Fountain (Cortina), in the toilet. Emergency medical services were called, and Ms. Williams and Cortina were taken by ambulance to Waterman Medical Center, where they were admitted at 1:10 p.m. that day. 2/ Upon admission to the hospital, physical examination revealed Cortina to be a viable female infant, with normal activity and no overt abnormalities. No evidence of trauma, cyanosis or poor oxygenation function, or cardiac function was observed, and Cortina exhibited all normal neurologic reflexes, such as Moro, suck, and grasp. Moreover, no abnormality of the anterior fontanel of the infant was noted. Cortina remained in the hospital until August 5, 1992, when she was discharged to the care of her mother. During her two day residence in the hospital, Cortina did not evidence any abnormalities. Rather, she fed well and gained weight, did not demonstrate any bruising or trauma, and did not demonstrate any neurologic changes or other abnormalities. Cortina's subsequent development and readmission to the hospital Cortina was readmitted to Waterman Medical Center, through the emergency room, at or about 6:35 p.m., September 11, 1992. At the time, history reflected that her development was apparently uneventful until one or two days prior to admission. During that time, Cortina stopped taking her formula, became progressively lethargic, vomited, and experienced episodes of diarrhea. For the twenty four hour period prior to her admission, Cortina was noted to be febrile. Upon admission, Cortina was noted to be extremely emaciated, having a weight of 4 pounds 3 ounces compared to her birth weight of 5 pounds 12 ounces. She was also noted to be listless, markedly dehydrated, and with bulging anterior fontanelle and a temperature of 104 degrees Farenheit. Testing revealed electrolyte imbalance and metabolic acidosis. Such symptomology was consistent with central nervous system infection, and Cortina was started on oxygen, intravenous fluids, including dextrose, and Rocephin. At or about 10:35 p.m., September 11, 1992, she was transferred by helicopter to the neonatal intensive care unit at Florida Hospital Medical Center (Florida Hospital) in Orlando, Florida. Cortina remained at Florida Hospital until October 2, 1992, when she was discharged to the care of her mother. Her course at Florida Hospital was adequately set forth in her discharge summary as follows: PHYSICAL EXAMINATION: Physical examination on arrival at Florida Hospital Medical Center, pediatric intensive care unit, revealed a marasmic, somewhat listless, black female who was markedly dehydrated. Temperature was 103 degrees Fahrenheit. Heart rate ranged between 170 and 190, and blood pressure was 83/53. She was intubated, and the anterior fontanelle was somewhat sunken at this time. IMPRESSION ON ADMISSION: FEVER WITH A POSSIBILITY OF SEPSIS. BORDERLINE HYPOGLYCEMIA. SEVERE DEHYDRATION. MARASMUS. RULE OUT A METABOLIC DISORDER OR A VIRAL ENCEPHALOPATHY. HOSPITAL COURSE: Upon admission, a central line was placed, and patient was placed on assisted ventilation. The fontanelle was initially sunken but after adequate hydration was noted to be bulging during the night. A computerized axial tomo- graphy scan of the brain was obtained on an emergency basis, and this revealed diffuse brain swelling. The patient was started on hyperventilation with the addition of intravenous mannitol. Additional laboratory data that was obtained included a liver profile which showed her albumin to be 2.0, SGPT was 52, SGOT 39, GGT 350, serum ammonia 161 which is increased, serum lactase was 6.5 which is also increased. Reticulocyte count was 3.7 [percent] and hemoglobin and hematocrit were decreased to 5.8 and 18.0 respectively. Endotracheal tube aspirate that was sent for respiratory syncytial virus came back negative. Hospital course will be further discussed on the problem list. PROBLEM [NO.] 1: ENCEPHALOPATHY WITH BRAIN SWELLING AND SEIZURE DISORDER. After the initial presentation and the finding of cerebral swelling, the patient was started on hyperventilation with intravenous mannitol. She was noted to have fisting of the hands and occasional jerky movements that were associated with bradycardia, and an electroencephalogram that was done revealed seizure activity. Hence, she was started on intravenous phenobarbital which was slowly increased over 24 hours until clinical control of the seizures was obtained. Subsequent electroencephalograms that were done on September 14, 1992, still showed frequent multifocal epileptiform discharges, although there was no clinical evidence of seizure disorder. In light of this, her dose of phenobarbital was increased after an initial minibolus. A pheno- barbital level in the upper 20s to lower 30s was maintained with a dose of phenobarbital 6 mg b.i.d. Repeat electroencephalograms done on September 17, 1992, and September 25, 1992, were abnormal, as manifested by diffuse sharp and slow wave discharges in the waking state which got accentuated by sleep. . . . on September 12, 1992, the patient was also started on intravenous acyclovir because of the possibility of herpes encephalitis. A lumbar puncture was not repeated for further cerebrospinal fluid studies because of the presence of the cerebral swelling, but an attempt to obtain cerebrospinal fluid via a subdural tap was futile. The patient was slowly weaned off the ventilator and finally extubated on September 17, 1992. The mannitol was weaned off over the next four days and discontinued on September 20, 1992. The Rocephin was continued for a total of 10 days and the acyclovir for a total of 14 days. At the time of discharge and for at least one week prior to discharge, she was able to track very well, was feeding well, and had essentially a normal neurologic examination. Auditory brain stem evoked response studies that were done revealed normal hearing in both ears. A computerized axial tomography scan of the brain that was done on September 22, 1992, showed diffuse, decreased density within the cerebral hemispheres bilaterally with preservation of the basal ganglia and thalamus. There was interval volume loss in the cerebral hemispheres which was felt to be consistent with resolution of the cerebral edema. PROBLEM [NO.] 2: DEHYDRATION AND ELECTROLYTE ANOMALIES. On the day of admission, the patient had a BUN of 38 with a creatinine of 1.2 and a glucose of 60. She was placed on D10 one-quarter normal saline and the dehydration was corrected slowly over 48 hours. Over the ensuing week, she developed anasarca, mostly due to hypoalbuminemic state, but this resolved at least one to two weeks prior to discharge. A Chem-21 that was done on September 29, 1992, showed a sodium of 137, potassium 5.2, chloride 106, CO2 20.6, glucose 96, creatinine 0.5, BUN 13. The rest of the Chem-21 profile was essentially with normal limits. Specifically, the albumin had risen to 3.5 on September 29, 1992. PROBLEM [NO.] 3: ANEMIA. At the time of her admission, the patient's hematrocrit was 22 [percent] but this dropped to 18 [percent] after she was rehydrated. She was transfused on two occasions, and after this she maintained a reasonable hematocrit until the time of discharge. A complete blood count that was done on September 29, 1992, showed a white blood cell count of 13,800, hemoglobin 14.0, hematocrit 40.8, platelet count 151,000. There were 41 segs, 1 band, 43 lymphs, 13 monos and 2 eosinophils. * * * PROBLEM [NO.] 4: HEPATOPATHY WITH HYPERLACTASEMIA AND HYPERAMMONEMIA. It was felt that the patient's hepatopathy and abnormal laboratory data related to the liver function was probably due to a viral or metabolic problem. Urine for amino acid screen was essen- tially negative, and urine for organic acid screen came back showing an abnormal peak with octeny- lsuccinic acid. It was felt by Dr. McReynolds that this is an emulsifier that is used in certain infant formulas, and repeat testing for this purpose has been scheduled on an outpatient basis. The metabolic studies that are pending at the time of discharge include blood amino acid profile and also serum isocarnitine profile. PROBLEM [NO.] 5: MALNUTRITION. Patient looked significant marasmic on the date of admission and had an admission weight of 4 lb. 3 oz. At the time of discharge, she was toler- ating full-strength Pregestimil and was gaining weight daily. Her discharge weight is 6 lb. 7 oz. (2.9 kg). Her head circumference was 35.5 cm at the time of discharge. PROBLEM [NO.] 6: INFECTIOUS DISEASE. In spite of the septic workup, there was no identifiable causative organism, although a viral etiology could not be totally ruled out. Blood for herpes simplex IgM titers was un- revealing. In spite of the negative studies, the patient was given the benefit of the doubt and treated with meningitic doses of Rocephin for 10 days and meningitic doses of acyclovir for 14 days. . . . Cortina's discharge diagnoses were "severe encephalopathy with cerebral edema and epilepticus," "ongoing seizure disorder," and "anemia with abnormal peripheral smear." The cause and severity of Cortina's neurologic injury Although the proof demonstrates that Cortina suffered some neurologic impairment, as a consequence of events at or about the time of her readmission to the hospital on September 11, 1992, it is quite unrevealing as to the severity of that impairment. Consequently, the proof fails to support the conclusion that any neurologic injury Cortina suffered rendered her permanently and substantially mentally and physically impaired. Regarding the timing and cause of Cortina's neurologic injury, the proof is compelling that, notwithstanding the circumstances of her delivery, Cortina was, at birth, a normal, vigorous infant, with no apparent abnormalities. Her development thereafter was likewise uneventful, until one to two days prior to September 11, 1992, when she was readmitted to the hospital, at approximately five weeks of age. In the opinion of Lance Wyble, M.D., a board certified neonatologist, Cortina's presentation on September 11, 1992, was most consistent with a viral etiology which, given her history, had its genesis within the 24 to 48 hour period immediately preceding her admission on September 11, 1992. It was further Dr. Wyble's opinion that such was the most likely cause of any neurologic injury Cortina suffered, and that any injury she suffered was wholly unrelated to the birthing process or her delivery. Of a similar opinion was Charles Kalstone, M.D., a board certified obstetrician. The opinions of Doctors Wyble and Kalstone are grossly consistent with the proof of record regarding Cortina's birth and her subsequent readmission to the hospital on September 11, 1992, and are credited.
Findings Of Fact Lennox Wiles was born on May 11, 2014, at Tallahassee Memorial Hospital located in Tallahassee, Florida. Lennox 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 Lennox, 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 an affidavit dated January 23, 2017, Dr. Willis set forth his findings and opinion in pertinent part as follows: It is my opinion the mother was not in labor, so the injury did not occur during labor. Delivery was by Cesarean section, so hypoxic brain injury did not occur during delivery. The baby was crying at birth, again suggesting there was no significant brain injury during delivery. Respiratory distress occurred shortly after delivery and required bag and mask ventilation for 30 seconds. Apgar score was 9 by 5 minutes. Spontaneous respiratory activity resumed and the baby was left with the Labor and Delivery staff. Once the NICU staff left the baby with the L & D staff, this would indicate the baby was stable and would end the immediate post- delivery period. It would be unlikely that significant hypoxic brain injury occurred during post-delivery period, which would be the brief period from delivery until the baby was left with the L & D staff. Based on this information, it does not appear this child suffered oxygen deprivation sufficient to cause brain injury during the labor, delivery or the immediate post delivery period. In conclusion, 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. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Lennox and to review his medical records. Dr. Sigurdardottir examined Lennox on October 19, 2016. In an affidavit dated January 19, 2017, Dr. Sigurdardottir summarized her findings from the medical evaluation and opined as follows: Lennox is found to have substantial motor and mental impairment at this time. At the age of [2-1/2], he is dependent on his caretakers for all care and although he can grab toys and indicate wants and needs in a very simple manner, he has what seem to be significant cognitive delays. His motor disability is significant. There is evidence of decreased fetal movement and nonreassuring fetal heart rate. This led to his cesarean section. The patient did have signs of ischemia including coagulopathy at birth and went into a persistent pulmonary hypertension suggestive of fetal distress. His current clinical picture is that of cerebral palsy. The injury is likely to have occurred prenatally, prompting decreased fetal movements. The mother was however not in active labor at time of delivery. At this time, Lennox’s prognosis for life expectancy is excellent, but for full recovery is extremely guarded as he has substantial mental and physical impairment and is not sitting at this time. In light of the above details, and the absence of active labor at time of delivery, I do not recommend Lennox being included in the Neurologic Injury Compensation Association 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 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. Sigurdardottir’s opinion that while Lennox has substantial motor and mental impairment, Lennox’s cerebral palsy is likely to have occurred prenatally and there was no active labor at the time of delivery. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue in the proceeding is whether Ashley Wilkinson, 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 Petitioners, George Wilkinson and Kimberly Wilkinson, are the parents and natural guardians of Ashley C. Wilkinson, a minor. Ashley was born a live infant on July 13, 1996, at Spring Hill Regional Hospital, a hospital located in Spring Hill, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Ashley's birth was Thomas J. Armbruster, 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. Mrs. Wilkinson's antepartum course and Ashley's birth Mrs. Wilkinson's antepartum course was without significant complication until July 10, 1996, when, at 6:40 p.m., with the fetus at 38 and 4/7 weeks gestation (estimated date of delivery July 20, 1996), she presented at Spring Hill Regional Hospital complaining of "bleeding [and] low pressure," and was admitted to rule out labor. At the time, external fetal monitoring revealed a reassuring fetal heart rate in the 130-beat per minute range, and no contractions. Vaginal examination revealed the cervix at 1 centimeter, effacement at 20 percent, and the fetus at station -3, with the membranes intact. Dr. Armbruster was paged, and at 7:15 p.m., visited briefly with Mrs. Wilkinson. At that time, Dr. Armbruster instructed staff to watch for contractions for another 30 minutes and if none were observed, Mrs. Wilkinson could be discharged. Thereafter, at 8:45 p.m., there being no evidence of contractions or other change in status, Mrs. Wilkinson was discharged, with mother and fetus noted to be stable. Insofar as the record reveals, Mrs. Wilkinson's antepartum course continued without apparent complication until approximately 12:01 a.m., July 13, 1996, when, while at home in bed, her membranes ruptured and, either contemporaneously or shortly thereafter, she evidenced seizure activity (possibly eclampic) and severe vaginal bleeding.2 Mrs. Wilkinson's husband immediately called 911. Pasco County Fire Rescue responded to the emergency call. On arrival, fire rescue personnel witnessed Mrs. Wilkinson thrashing about in bed, and observed a large amount of blood on the bed and in her vaginal area. The Pasco County Fire Rescue personnel further noted that: . . . [Patient] combative, swinging arms [and] attempting to bite . . . ABD firm, soft. Restraints bilat[eral] wrists to protect [patient]. O2 by NRB held near face. [Patient] remained combative, unable to attempt IV. S[pring] H[ill] Reg[ional] ER called to advise of possible emergent C Section during response . . . . Mrs. Wilkinson was transported by Pasco County Fire Rescue to the Spring Hill Regional Hospital emergency room (ER) where she arrived shortly after 1:00 a.m., July 13, 1996.3 Upon arrival, Mrs. Wilkinson was described as combative (scratching, kicking and screaming), with no eye contact. At the time, heavy bright red vaginal bleeding was noted, and Mrs. Wilkinson's cervix was described as 1 to 2 centimeters dilated. Fetal monitoring (from approximately 1:10 a.m. to 1:20 a.m.) revealed a fetal heart rate of 120 to 130 beats per minute, with no accelerations, and no evidence of uterine contractions; however, because monitoring was sporatic and brief, the monitor strips provide no compelling evidence as to the well-being of the fetus or whether Mrs. Wilkinson was or was not in labor. At approximately 1:20 a.m., ER personnel advised Dr. Ambruster by phone, at home, of Mrs. Wilkinson's status. Dr. Armbruster ordered that preparations be made for a stat cesarean section. At 1:45 a.m., Mrs. Wilkinson was taken to the operating room, and at 2:11 a.m., Ashley was delivered by cesarean section. Pertinent to this case, Dr. Armbruster's operative report noted that: . . . there appeared to be an approximately 30% abruptio placenta at the time of delivery and also that the amniotic fluid was port wine stained and that would be consistent with the abruptio placenta. Whether the cause be a straight abruptio or the eclampic seizure was unknown. Otherwise the uterus, tubes and ovaries were noted to be normal. On delivery, Ashley was handed off to Dr. Mari Doherty, the pediatrician in attendance. Dr. Doherty's progress notes include the following observations: . . . [On delivery, the baby] was bathed in blood. [S]uctioned blood from mouth [and] nares. Baby delivered [and] placed under radient warmer [and] because of no respirations [and] limp, the baby was given PPV [with] 100 [percent] BVM for about 4-5 min[utes] intermittently . . . Baby's breathing was labored [and] grunting; more suctioning and chest PT improved the baby. Suctioning done in between breaths . . . Baby transported from the OR to the Nursery [with] O2 by mask . . . . Apgars scores were recorded as 4, 7, and 8, at one, five, and ten minutes respectively. The Apgar scores assigned to Ashley are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex/irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Ashley's Apgar score totaled 4, with heart rate being graded at 2, muscle tone and reflex/irritability being graded at 1 each, and respiratory effort and color being graded at 0 each. At five minutes, Ashley's Apgar score totaled 7, with heart rate and reflex/irritability being graded at 2 each, and respiratory effort, muscle tone, and color (with her body pink, but extremities blue) being graded at 1 each.4 At 2:30 a.m., Ashley was transported from the operating room to the nursery. On admission, Ashley was placed on an EKG/Apnea monitor; ABG, blood culture, and blood sugar testing was ordered; and IV was started. At 2:45 a.m., when her oxygen saturation levels were noted to fall, Ashley was deep suctioned and given increased oxygen. Between 2:45 a.m., and 7:55 a.m., Ashley's oxygen saturation levels continued to drop periodically, and she was noted to be cyanotic on occasion. At 5:30 a.m., Ashley was again suctioned, producing approximately 5cc of bloody mucus, and during the early morning hours was noted to be very jittery and irritable, with occasional arching of the back and stiff extremities, and was medicated with Phenobarbital. Given her condition, Ashley was transferred, at or about 7:55 a.m., to All Children's Hospital where she was reportedly in a coma for two weeks.5 Currently, Ashley presents with static encephalopathy (status post hypoxic ischemic encephalopathy), characterized by spastic quadriplegia, global developmental delay, and seizure disorder, as well as gastroesophageal reflux. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, there is no serious dispute that Ashley suffered an injury to the brain, caused by oxygen deprivation, secondary to placental abruption. There is likewise no serious dispute that the injury Ashley suffered rendered her permanently and substantially mentally and physically impaired.6 What is at issue, is whether the asphyxia which precipitated her injury occurred "in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," as required to qualify for coverage under the Plan. To address the issue, the parties offered selected medical records relating to Mrs. Wilkinson's antepartum course, as well as those associated with Ashley's birth and subsequent development. Additionally, Petitioners offered the deposition testimony of Radhakrishna Rao, M.D., a pediatric neurologist (board-eligible in pediatrics and pediatric neurology). Petitioners also offered the testimony of Mrs. Wilkinson which, if credited, would demonstrate that commencing at or about noon, July 12, 1996, she began to experience regular uterine contractions approximately 10 minutes apart, and that the contractions continued throughout the day progressing to approximately 8 minutes apart by 3:30 p.m., and approximately 6 minutes apart by 7:30 p.m. Respondent offered the deposition testimony of Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology, and Intervenor Armbruster offered his own testimony, as well as the testimony of Robert Yelverton, M.D., a physician board-certified in obstetrics and gynecology. The medical records and the testimony of the physicians and other witnesses offered by the parties have been carefully considered. So considered, it must be concluded, by application of the presumption established by Section 766.309(1)(a), Florida Statutes, or otherwise, that the brain injury suffered by Ashley was caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.7 In reaching such conclusion, it has been helpful to initially identify those matters on which the medical experts share a commonality of opinion. Such matters include an opinion that Ashley's brain injury was caused by oxygen deprivation, secondary to placental abruption; that such deprivation started at some time following abruption and continued until she was resuscitated, following delivery; and that, given the record in this case, one cannot resolve where on that time line (whether at the onset of the abruption or at some other definitive point through resuscitation) hypoxia of a sufficient magnitude occurred to account for the severe brain injury Ashley suffered. The experts are also in agreement that the hospital records relating to Ashley's birth provide little or no help in resolving the issue of whether Mrs. Wilkinson was in labor at the time of placental abruption or thereafter. In this regard, it is noted that there is no serious disagreement that the fetal monitoring which occurred following Mrs. Wilkinson's arrival at the emergency room (from approximately 1:10 a.m. to 1:20 a.m.) was inadequate to provide any compelling evidence as to whether Mrs. Wilkinson was or was not in labor. Moreover, it is worthy of note that the experts agree that, given the emergent nature of Mrs. Wilkinson's presentation, it was not pertinent to her clinical management to resolve whether she was in labor but, rather, to delivery Ashley as soon as possible. Consequently, the absence of evidence in the hospital records regarding labor is not meaningful.8 Having explored the areas on which the experts are in agreement, it is timely to consider, without reference to Mrs. Wilkinson's testimony regarding the onset of labor, the opinions of the experts offered on behalf of Intervenor Armbruster regarding the onset of labor, contrasted with the opinions of the expert offered by Respondent.9 As will be noted, there is little in the testimony of these physicians to credibly resolve, without reference to Mrs. Wilkinson's testimony, when, if ever Mrs. Wilkinson entered labor. Dr. Yelverton, an expert called by Intervenor Armbruster, expressed his opinion on the question of labor, as follows: Q. Did you find any evidence in the record, Dr. Yelverton, that the patient was in labor with respect to any of the health care providers that had been treating her at the hospital? * * * A. There's one comment on the summary of the labor and delivery which states that the patient was in labor and the labor began 0001 hours on July 13th, 1996. This was a summary of the labor and delivery record that was recorded by a registered nurse whose name is illegible to me.[10] * * * Q. In addition to the nurse's note that you've pointed out to Judge Kendrick about labor, did you find any other evidence in the record that the mother was in labor, including the fact that she had an abruptio placenta? A. Well, I think given a more likely than not scenario in this case, when events of this nature occur at home, or even in the hospital, and they result in a spontaneous rupture of membranes with a great deal of blood present at the time, either there were some contractions that disrupted the placenta or a spontaneous rupture in the membrane which resulted in the contraction of the uterus itself which resulted in the abruption. Either way, more likely than not, there was some uterine activity that resulted in either spontaneous rupture of the membranes or the abruption itself. Q. Do you have an opinion within reasonable medical probability or more likely than not, based upon your background, training and experience and your review of the materials about whether or not Ms. Wilkinson was, in fact, in labor? A. I think more likely than not, she was in labor. I failed to mention also that she was two centimeters dilated when she arrived at the hospital with ruptured membrane, vaginal bleeding. It would be very unusual to find that particular scenario with a patient not having uterine contractions. [Transcript of September 13, 2001, hearing, at pages 48, 49, 52 and 53.] Dr. Yelverton's opinion that, without consideration of Mrs. Wilkinson's testimony, Mrs. Wilkinson was in labor at the time of abruption is not persuasive. First, it is noted that at admission to the ER, Mrs. Wilkinson was not noted to be 2 centimeters dilated but, rather 1 to 2 centimeters dilated. Given that she was 1 centimeter dilated on July 10, 1996, and not in labor; the subjective nature of the examination; the circumstances under which it was done; and the fact that the examination of July 13, 1996, noting a range of 1 to 2 centimeters was apparently made by a different person than the one who made the observation on July 10, 1996; the difference in dilations is not compelling evidence of labor. Second, Dr. Yelverton's suggestion that "some uterine activity" must have "resulted in either spontaneous rupture of the membranes or the abruption itself," is hardly persuasive evidence of labor (the onset of regular uterine contractions), and ignores, inter alia, the equally plausible alternative that the abruption was spontaneous or that it was precipitated by the seizure Mrs. Wilkinson suffered. Dr. Armbruster, who testified on behalf of himself, expressed his opinion on the question of labor, as follows: Q. . . . [W]as there any evidence in the records that you're aware of that . . . indicate[d] that . . . the mother . . . was in labor, or have you had a chance to re- review the records recently? A. Yes. One, she did complain of abdominal pain, which, of course, is associated with labor, and, two, her cervix had dilated. She was two centimeters from one centimeter when she came in two days prior, and she had effaced. Her cervix had thinned out from 20 percent to 80 percent, therefore, some sort of labor had to be going on during the two intervening days. Q. Would you explain that in a little bit more detail by the progression of cervical dilatation and progression of effacement in the face of contractions indicating to you that labor was ongoing? A. All right. We have many definitions of what labor is or we discuss what labor is, but most doctors agree true labor is the changing of a cervix in dilatation and the effacing or thinning out of a cervix. So most doctors or most obstetrician/gynecologists will agree upon the fact that if there is a change in the cervix, whether it be effacement or dilatation, that is the definition of labor. In this case, Ms. Wilkinson showed both a change in dilatation and effacement. Q. Do you have an opinion within a reasonable medical probability, based upon your background, training and experience, your involvement with this patient and your review of the records about whether or not Ms. Wilkinson was in true labor from the time that the abruptio placenta occurred up through the delivery of the child? A. In my opinion, she was in labor from the time of the abruptio to the time I did the C section, both with the pain she showed and also the change in the cervix and with effacement and dilatation, that is correct. * * * Q. But based upon the records alone, do you believe that she was in labor? A. Without a doubt, I believe she was in labor at the time of the abruption of the placenta. Q. And regardless of the records, just based on your own experience with patients with abruptio placentas and the consequent bleeding causing uterine irritability and contraction, do you believe she was in labor based on that experience? A. I believe that she was in labor for two reasons, and I've stated them prior: One, she did complain of abdominal pain, and; two, that there was a change in the cervix with both -- in change of dilatation and effacement . . . . [Transcript of September 13, 2001, hearing, pages 89-92.] Dr. Armbruster's opinion that, without consideration of Mrs. Wilkinson's testimony, Mrs. Wilkinson was in labor at the time of abruption is also not persuasive. First, Mrs. Wilkinson was not, as Dr. Armbruster states, 2 centimeters dilated when she presented to the ER on July 13, 1996, and, for reasons heretofore noted, the change in dilation noted is not persuasive proof of labor. Second, Dr. Armbruster's testimony that on presentation to the ER on July 13, 1996, "[h]er cervix had thinned out from 20 percent [noted on July 10, 1996] to 80 percent" finds no record support, and his testimony that he has a clear recollection of her effacement on July 13, 1996, without benefit of any contemporaneous notation of such observation, is improbable and unworthy of belief.11 Dr. Kalstone, who testified on behalf of NICA, expressed his opinion on the question of labor, as follows: Q. . . . Doctor, based upon your training and experience and review of this file, were you able to reach any conclusions whether or not the records demonstrated to you that Ashley Wilkinson sustained oxygen deprivation during the course of her delivery or immediate resuscitation? A. Yes. My opinion was that she was not in labor, essentially, and therefore, she didn't suffer from oxygen deprivation during labor, and certainly during labor or resuscitation in the immediate post-delivery period. Q. Doctor, please explain the basis for that opinion. A. The patient was at approximately 39 weeks pregnant and her husband woke up to find her having a major seizure, it sounds like, in bed, and simultaneously her membranes ruptured spontaneously. She had severe hemorrhage from the vagina, which later turned out to be proven to be from a placental abruption. There is no mention that the patient was in labor or that she was having contractions, by anyone that took care of her or was with her. She was transported in a timely way to Spring Hill Regional Hospital where the nurse who admitted her noticed that she was actively bleeding and that she was agitated and combative. She was prepared for an emergency cesarean section. * * * Now, in the doctor's written and dictated notes, including the summary, there doesn't seem to be any mention or consideration that she was in labor, and there was nothing in the nurses' notes that would lead me to believe that she was in labor, either. The doctor said that the cervix was one to two centimeters dilated when checked in the emergency room. She had one previous vaginal delivery and one to two centimeters doesn't mean necessarily that the patient was in labor. There is no mention as to whether the cervix was effaced. * * * So, in reviewing all this information, there was no reason to suggest that the patient was in labor. * * * Q. Doctor, did you have an occasion to review the fetal monitor strips? A. Yes. On the fetal monitoring strips -- they start monitoring shortly before 1:10 a.m., and ended shortly before 1:20. On the fetal monitor strips the fetal heart wasn't recorded continuously. The rate was around 120 to 130. There were no accelerations, but the fetus was monitored for a short period of time. So, I can't really tell if that tracing is normal or abnormal. In regards to the uterine-activity part of the tracing, that was monitored for part of that time and I didn't see any evidence of uterine contractions that were recorded on these fetal monitor strips for the time that the patient was on the monitor. Q. Doctor, do you believe that the abruption of the placenta occurred before Mrs. Wilkinson commenced labor? Yes. I don't think she really commenced labor. The placenta definitely abrupted at home. It was a sudden event, catastrophic event that occurred while she was in bed, maybe concomitant with when the membranes ruptured, that they both happened about the same time. Placentas do abrupt during labor, but they can also abrupt without labor, and it is my opinion that this patient went to bed fine, essentially, and then had two major things happen to her. One, she had a seizure; and two, her placenta abrupted. Simultaneously, the membranes ruptured . . . * * * Q. Based upon your review of the records, more likely than not did the baby's mother actually go into labor at all before she was born? * * * As I said before, there is really no evidence that I can see from nursing notes, the doctor's dictation or the patient history that was obtained, through the husband mostly, I think, to suggest that labor was the culprit or that she was in labor . . . . [Respondent's Exhibit 1, pages 7-12] Dr. Kalstone's opinion that, based on the available antepartum records, Mrs. Wilkinson was not in labor when she presented at Spring Hill Regional Hospital is credible; however, given that the records are limited in scope, given the emergent nature of Mrs. Wilkinson's presentation, and given the absence of any reason to document labor, any opinion based on those records is inadequate to rebut the presumption of labor established by Section 766.309(1)(a), Florida Statutes. Finally, addressing Mrs. Wilkinson's testimony regarding the onset of labor at or about noon, July 12, 1996, it must be resolved, contrary to Respondent's contention, that there is no compelling reason to reject her testimony as less than credible. Consequently, it may be said that the record supports the conclusion that, by application of the presumption established by Section 766.309(1)(a), Florida Statutes, or otherwise, that the brain injury Ashley suffered was caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.
The Issue At issue in this proceeding is whether Sarah Massey, 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 Gina R. Massey and James Massey, are the parents and natural guardians of Sarah Massey (Sarah), a minor. Sarah was born a live infant on March 14, 1993, at St. Joseph's Women's Hospital (St. Joseph's), a hospital located in Tampa, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Sarah was Steven Ira Arkin, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Massey's antepartum course and Sarah's birth At the time of Sarah's birth, Mrs. Massey was 28 years of age, and Sarah was to be her first child. Her estimated date of confinement was established as March 20, 1993, and her pregnancy was uncomplicated. On March 13, 1993, Mrs. Massey started to experience contractions, and at or about 7:00 p.m. her membranes spontaneously ruptured. Following her physician's advice, Mrs. Massey presented to St. Joseph's Women's Hospital at or about 9:00 p.m. By 5:30 a.m., March 14, 1993, Mrs. Massey's cervix had dilated to four centimeters; however, she failed to progress and at approximately 8:00 a.m. Pitocin was started. Thereafter labor continued, but without progress, until 9:20 a.m., at which time Pitocin was discontinued and Dr. Arkin decided, for reasons hereafter discussed, to proceed with a caesarean section. Pertinent to this case, starting at 5:30 a.m., March 14, 1996, and extending until delivery, the fetal heart rate was monitored by fetal scalp electrode. Such monitoring revealed, overtime, repetitive variable and late decelerations; a reflection of fetal stress. Based on such indicia of fetal distress and Mrs. Massey's failure to progress, Dr. Arkin elected to proceed by caesarean section. Mrs. Massey was taken to the operating room at 9:30 a.m., anesthesia was started at 9:35 a.m., and surgery commenced at 9:56 a.m. At 10:01 a.m., Sarah was delivered. Upon delivery Sarah breathed spontaneously, and did not require resuscitation. The delivery record reveals no abnormalities observed at birth; however, Sarah was noted to have a temperature of 102.5 degrees. Her Apgar scores were noted as 8 at one minute and 9 at five minutes. Such scores are considered good or normal. 3/ Sarah was transferred to the well baby nursery at 10:20 a.m. where, upon admission she was noted to exhibit grunting and nasal flaring, as well as a continued pale color and poor lung exchange of air. By 10:50 a.m. Sarah's color had improved; however she continued to grunt intermittently. Considering Sarah's presentation, the initial concern was of infection, given the mother's and child's elevated temperatures at birth, as opposed to hypoxic insult. Consequently, Sarah was placed on a seven-day regimen of antibiotics as a precautionary measure. 12. During the 11:00 p.m. (March 15, 1996) to 7:00 a.m. (March 16, 1996) shift, Sarah exhibited some right-sided twitching consistent with seizure activity. Following such report, initial physical examination by her treating physician failed to observe any jitteriness; however, questionable eye deviation to the left was noted. Consequently, an electroencephalogram (EEG) and cranial ultrasound were ordered, and a neurologic consult was placed. The EEG of March 16, 1993, was abnormal, and demonstrated active electrical seizure activity in the left hemisphere. The cranial ultrasound of the same date likewise demonstrated an abnormality. That study found: . . . There is an echogenic, amorphous area located within the left basal ganglion region. . . . The findings are nonspecific, but given the presentation and age of the infant, a hemorrhage would be most likely. No germinal matrix, hemorrhage or abnormality is seen and no periventricular white matter abnormality is seen to suggest hypoxic/ ischemic brain injury. Of note, color Doppler ultrasound of the area was performed, and no abnormal vascularity to the echogenic area was seen. This would support a hemorrhage over a tumor . . . since no vascularity was seen. Still, computer tomography of the head is recommended to further evaluate this abnormality if appropriate. No other abnormalities are seen. The brain is structurally normal. The ventricles are normal in size. Conclusion: Amorphous, echogenic mass in the left lentiform nucleus and external capsule region which most likely represents an intracerebral hemorrhage. Computer tomography at some point is recommended. No other abnormalities are seen. No germinal matrix abnormality, ventricular enlargement, or evidence of hypoxic/ischemic injury to the periventricular white matter is seen. Sarah was transferred from the well baby nursery to the neonatal intensive care unit (NICU) at approximately 3:00 p.m., March 16, 1993. Following admission, a brain CT scan was ordered. The brain CT scan of March 16, 1993, revealed extensive low attenuation throughout the left cerebral hemisphere, including the basal ganglia, suggesting a large cerebrovascular accident (CVA). No significant midline shift was observed, and no hemorrhage was seen to correlate with the echogenic area observed on the ultrasound performed earlier that day. Neurologic consult was of the impression that Sarah had a seizure disorder, probably secondary to an intra-uterine CVA, and a mild right-sided hemiparesis. Sarah was begun on Phenobarbital and her seizures were well controlled. Following the seven day regimen of antibiotics heretofore noted, Sarah was believed stable, and on March 21, 1993, she was discharged to the care of her parents. The ultimate neurologic result of Sarah's intra- uterine CVA (stroke) was a mild right-sided hemiparesis, evidenced by spastic weakness primarily of her right arm; however, there is also some diminution of motor function in Sarah's right leg. As for her mental status, Sarah's mental functioning currently appears age appropriate and, although it cannot be conclusively stated at this juncture in her life, it appears more likely than not that she has not suffered any diminution of cognitive function. The timing and cause of Sarah's intra-uterine CVA Although the medical records indicate that during labor Sarah underwent fetal stress, as evidenced by fetal heart decelerations, the proof fails to support the conclusion that those events contributed to her neurological deficits. Rather, the proof, as demonstrated by Sarah's presentation at birth, relatively stable condition during hospitalization, and radiological studies, indicates that Sarah's neurological impairments derive from an intra-uterine stroke which significantly predated the onset of labor, as opposed to hypoxic insult during the course of labor or delivery. Apart from Sarah's presentation and progress during hospitalization, the radiological studies, done within two days of her birth, provide compelling proof as to the nature and timing of her injury. First, such studies do not demonstrate evidence of an acute brain injury which could have occurred during the course of labor and delivery. In this regard, it is observed that there was no evidence of edema (a condition of swelling which accompanies an acute brain injury) and no evidence of a recent (acute) hemorrhage (the presence of blood). Second, the area of diffuse low attenuation observed on radiologic study was most likely a presentation of dead or injured brain cells in the area of the hemorrhage which had undergone organic changes over time, and could properly be described as presenting in a chronic state (persisting over a long period of time), as opposed to acute. Finally, the focal nature of Sarah's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. In this regard, it is noted that hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Sarah suffered, with a resultant effect, to varying degrees, on all neurologic function, as compared to the limited neurologic loss Sarah suffered. Given the record, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that the cause of Sarah's brain injury and her ensuing neurologic impairment was an intra- uterine stroke, which predated labor by as much as one week, is credited as most consistent with the proof. Likewise credited, based on the consistency of his testimony with the proof of record, is Dr. Duchowny's opinion that Sarah's physical impairment can best be described as mild, as opposed to substantial, and that she evidences no loss of cognitive function.
