Findings Of Fact The Petition named Dr. Bankert as the physician providing obstetric services at Gavin's birth on June 30, 2009. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Glenn Bankert indicates that in the year 2009, the year which Dr. Bankert participated in the delivery of Gavin King, as indicated in the Petitioner's [sic] Petition for Benefits, Dr. Bankert did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Bankert in relation to an exempt status for the year 2009. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2009, Dr. Bankert paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. No party has offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Bankert was not a participating physician in the Plan at the time of Gavin's birth. Petitioners have not requested additional discovery time, and Petitioners have not moved for leave to amend the Petition to name any additional physician as rendering obstetrical services in connection with Gavin's birth. Dr. Bankert was not a participating physician at the time of Gavin's birth on June 30, 2009.
Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
Findings Of Fact On May 9, 2020, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, otherwise known as the Plan. The baby was born on November 16, 2019, at Shands Lake Shore Regional Medical Center (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records provided by NICA in response to the Petition. In the instant case, NICA has retained Donald C. Willis, M.D., as its medical expert specializing in maternal-fetal medicine. Dr. Willis’s medical report was attached to the Motion as Exhibit 1. Upon examination of the pertinent medical records, Dr. Willis opined: Based on available medical records, there was an apparent obstetrical event that may have resulted in some possible degree of oxygen deprivation during the birth process. However, any oxygen deprivation that may have occurred did not result in identifiable brain injury. It is likely the subdural and subgaleal hematomas resulted from failed vacuum application and not related to brain injury. Additionally, NICA retained Raj Sheth, M.D., as its medical expert specializing in Pediatric Neurology. Dr. Sheth’s medical report was attached to the Motion as Exhibit 2. Upon examination of the pertinent medical records and performance of an independent medical examination, Dr. Sheth opined: Willows’ neurological examination reveals mild gross motor delays for expected age. There was no evidence of generalized hypotonia or hypertonia. The remainder of her neurological examination was normal for age. She was thought to have moderate HIE in the immediate neonatal course. Her head circumference is growing appropriately. PT and OT evaluation expected good prognosis. Currently, Willow is making constant ongoing progress, although the family notes this is slower than for her 4-year-old brother. The neurologic examination and developmental examination indicate that she has mild developmental delays and subtle hand preferences where she uses both hands but tends to prefer her right hand more than the left. At this point she does not demonstrate significant mental or physical impairments. Her EEG post cooling was normal. Her head ultra-sound was normal. Her head MRI was normal and showed no evidence of IE or hemorrhage. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. The Petition, along with the unrebutted medical reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine issues of material fact regarding the compensability of this claim.
Findings Of Fact Adalynn was born on April 24, 2018, at Sarasota Memorial Hospital, located in Sarasota County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Adalynn. In a medical report dated September 5, 2019, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was complicated by FHR decelerations requiring Cesarean delivery. Umbilical artery cord pH was 7.12 with a base excess of -7.8, suggesting a significant oxygen deprivation did not occur during labor or delivery. Apgar scores were 3/9. The baby was stabilized in the delivery room on room air and transferred to the MBU. The baby apparently remained stable until about 7 to 12 hours after birth when the baby was noted to be fussy, poor feeding and with increased muscle tone. Seizure activity was noted on the EEG and MRI was consistent with HIE. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period that would have resulted in brain injury. Brain injury did occur as some time after birth, as documented by EEG and MRI. However, medical records do not suggest the brain injury was birth related. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Adalynn and to review her medical records. Dr. Duchowny examined Adalynn on September 24, 2019. In a medical report dated September 27, 2019, Dr. Duchowny summarized his examination of Adalynn and opined in pertinent part as follows: In SUMMARY, Adalynn’s neurological examination reveals global delay. She has four-limb static hypotonia and dynamic hypertonia with spasticity, hyperreflexia, left exotropia, microcephaly, absent communication, pseudobulbar affect and an in- dwelling gastrostomy. There is a history of seizures that are presently controlled on two anti-seizure medication[s]. A review of medical records further reveals that Adalynn was the product of a term pregnancy and delivery by urgent caesarian section. Her Apgar scores were 3 and 9 at 1 and 5 minutes. Venous umbilical cord blood gases were pH of 7.21 and base excess of - 7.4. She did not require resuscitation and was stable on room air. Liver function tests were elevated but there were no other indications of systemic organ involvement. Seizures commenced at 12 hours of age and were treated with phenobarbital and phytoin. Increased lactic acid was noted. Adalynn was noted to be hypertonic at birth. MR imaging performed on April 27th (DOL#3) revealed increased signal in the bi-occiptal regions and cerebral peducles. A subsequent MRI performed on May 3rd demonstrated increased signal in sensorimotor cortex, centrum semiovale, symmetric globus pallidus, putamen and occipital cortex as well as the pons and cerebral peduncles. MR spectroscopy revealed widespread signal increases in hemispheric grey and white matter. Based on the imaging findings, microcephaly, developmental delay and increased lactate, metabolic and genetic studies were undertaken and revealed multiple abnormalities. Although a definitive diagnosis has not yet been obtained, the genetic abnormalities in Adalynn’s mitochondrial genome are the most likely explanation for her neurological disability, imaging and laboratory values and clinical presentation. Based on today’s evaluation and medical record review, I am not recommending that Adalynn be considered for inclusion in the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his prior opinion, following the review of additional medical records provided by Petitioners, which included the results of genetic testing. Dr. Duchowny opined that this additional information “further supports the original recommendation that Adalynn should not be considered for inclusion into NICA.” 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 to Adalynn's brain during labor, delivery, and the post-delivery period which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Adalynn should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinions in an affidavit, dated March 20, 2020. Dr. Duchowny reaffirmed his opinions in an affidavit dated April 17, 2020.
Findings Of Fact Nevaeh was born on January 4, 2019, at AdventHealth Hospital located in Winter Park, Florida. In the Petition, Petitioner identified Dr. Luisa Vanegas as the physician who provided obstetrical services to Nevaeh. No evidence was presented that names another physician who participated in the course of labor, delivery, or resuscitation in the postdelivery period for Nevaeh. To support its motion, NICA produced from its official records a payment history which shows that, for 2019, Dr. Vanegas did not pay to NICA the annual $5,000 assessment required from physicians who elect to participate in the Plan. See § 766.314(4)(c), Fla. Stat. On the contrary, Dr. Vanegas’ payment history reveals that she paid $250 to NICA, which is the specific assessment for physicians who elect not to participate in the Plan. See § 766.314(4)(b)1., Fla. Stat. Further, no evidence was offered demonstrating that Dr. Vanegas was exempt from paying the assessment for 2019. Therefore, based on the evidence in its records, NICA determined that Petitioner’s claim did not meet the statutory requirements for compensability under the Plan. NICA subsequently filed the Motion for Summary Final Order. Petitioner has not responded in opposition to NICA’s motion or representations.
Findings Of Fact Jayden was born on September 20, 2011, at Jackson North Medical Center. The subject Petition was filed on June 25, 2018, which is more than five years after Jayden’s birth. Dr. Vaunrance Benjamin was the physician providing obstetric services and who was present at Jayden’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Benjamin did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Benjamin is otherwise exempt from payment. To the contrary, Dr. Benjamin paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1. for non- participating, non-exempt licensed physicians. Dr. Benjamin was not a participating physician in the Plan at the time of Jayden’s birth.
The Issue The issue for determination is whether Nathaniel Eisel (Nathaniel or the child), the minor child of Thomas Eisel and Lindsay Eisel, is entitled to compensation from Respondent based on a birth-related neurological injury.
Findings Of Fact Based on the allegations in the Petition and the affidavit submitted in support of the Motion for Summary Final Order, the following facts are found: Nathaniel was born on July 19, 2017. According to the Petition, Bhupendrakum Patel, M.D., and Brandon M. Kuchta, D.O., were the physicians providing obstetrical services. NICA alleges that neither physician was a participating physician at the time of the injury to the minor child. NICA supports its position with an affidavit signed by NICA’s records custodian, which states that Dr. Patel had not paid the required assessment for participation in the Plan and was not exempt from payment of the assessment. The affidavit also states that NICA’s physician database contains no entries for Brandon M. Kuchta, D.O. Petitioners do not dispute NICA’s assertion that neither physician was a participating physician in the NICA program, and it is found that the two physicians did not participate in the Plan for the year in which Nathaniel was born.
