Findings Of Fact Asher was born on April 20, 2017, at Memorial Hospital located in Pembroke Pines, Florida. Upon receiving the Petition, NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Asher’s case. NICA sought to obtain an opinion whether there was an injury to Asher’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Asher permanently and substantially mentally and physically impaired. Dr. Duchowny reviewed Asher’s medical records, as well as examined Asher on October 10, 2018. Dr. Duchowny opined, within a reasonable degree of medical probability: [I]t is my opinion that ASHER’s neurological examination reveals neurological findings consistent with a mild motor impairment primarily affecting his right upper extremity. In contrast, Asher has preserved cognitive function and social awareness. He evidences slightly decreased muscle tone in the right distal upper and lower extremities and slightly increased deep tendon reflexes. As such, it is my opinion that despite ASHER’s abnormal MR imaging studies at birth which document prominent hemorrhagic infarction in territories supplied by the left middle and posterior cerebral arteries with a smaller region of right middle cerebral artery infarction, and bilateral parieto-occipital areas of increased signal, he has recovered to a point where he no longer evidences either substantive mental or physical impairment. Based upon my evaluation and record review, as ASHER is developing normally, I am not recommending him for acceptance into the NICA program. A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinion of Dr. Duchowny. His opinion is credible and persuasive. Based on the opinion and conclusion of Dr. Duchowny, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed the Motion for Partial Summary Final Order asserting that Asher has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
Findings Of Fact Wyatt Cooper was born on July 21, 2015, at Highlands Regional Medical Center in Sebring, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Wyatt's medical records. In a medical report dated December 15, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor at 37 weeks was complicated by a non-reassuring FHR pattern during labor, followed by a shoulder dystocia at delivery. The newborn was depressed with Apgar scores 1/3/6/6/7. Blood cultures were positive for E. coli. Respiratory distress at birth progressively worsened and required ECMO. The newborn hospital course was complicated by multisystem organ failures. MRI was consistent with encephalomalacia. The cord blood pH of 7.25 seems somewhat inconsistent with the FHR pattern prior to delivery, a shoulder dystocia at birth and low Apgar scores of 1/3. The baby had E. coli sepsis, presumably prior to birth. Sepsis could account for the fetal tachycardia and decreased FHR variability during labor. Clinically, it would be reasonable that oxygen deprivation occurred during labor and delivery and continued into the post delivery period. If the cord pH is correct, it would suggest the oxygen deprivation occurred more likely during the immediate post delivery period. In either case, oxygen deprivation occurred during the post delivery period and the oxygen deprivation resulted in brain injury. There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain, primarily during the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. E. coli sepsis would likely be a contributing factor for the oxygen deprivation and brain injury. Dr. Willis' opinion that there was an obstetrical event that resulted in loss of oxygen to the baby's brain primarily during the immediate post-delivery period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Wyatt. Dr. Duchowny reviewed Wyatt's medical records and performed an independent medical examination on him on March 8, 2017. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Wyatt's neurological examination reveals evidence of generalized hypotonia, borderline expressive language delay and evidence of high activity level and short attention span. There are no focal or lateralizing findings. I have not yet had the opportunity to review medical records and will issue a final report once the review process is complete. Following his review of medical records, Dr. Duchowny wrote an Addendum dated March 14, 2017, which amended the above- referenced independent medical evaluation report. The addendum reads in pertinent part: Wyatt remained in the newborn nursery for a total of 65 days. His course was obviously extremely complicated with many risk factors for overall development. However, Wyatt does not have a substantial motor impairment, and his neurological deficits were likely acquired after birth. I am therefore not recommending consideration for inclusion in the NICA program. Dr. Duchowny's opinion that Wyatt does not have a substantial motor impairment is credited. In order for a birth-related injury to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. 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. Duchowny that Wyatt does not have a substantial motor impairment. While Wyatt has neurological deficits, these deficits do not render him permanently and substantially physically impaired.
