Findings Of Fact Jordan Gonzalez was born on May 29, 2008, at North Shore Medical Center in Miami, Florida. Jordan weighed 2,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jordan and his mother. In an affidavit dated February 19, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: It is my opinion that in summary, fetal abnormalities were identified by ultrasound during pregnancy. The baby was delivered by Cesarean section due to the development of fetal ascites. The mother was not in labor. The baby had several congenital abnormalities including hypoplastic lungs, single umbilical artery, ascites, dilated ventricles in the brain, agenesis of the corpus callosum and a small phallus. MRI did not identify findings suggestive of hypoxic brain injury. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or during resuscitation in the immediate post delivery period in the hospital. The mother was not in labor. The fetus had known abnormalities identified by ultrasound during pregnancy. It is most likely the baby's brain abnormalities are congenital and not related to oxygen deprivation at birth. Jordan was examined and evaluated by Michael Duchowny, M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated February 27, 2013, Dr. Duchowny found the following on his examination of Jordan: It is my opinion that the findings from the examination are consistent with both a substantial mental and motor impairment. Jordan is functioning at approximately age 2-3 month level and in addition to his global development delay manifests microcephaly, dynamic hypotonia and dynamic static hypotonia with hyperreflexia and pathological reflexes. However his examination reveals multiple congenital anomalies which together with the neuroimaging findings suggest that Jordan's neurological deficits were most likely acquired prior to birth. As such, it is my opinion that there is no evidence from his postnatal course or from his present physical findings to indicate that Jordan Gonzalez sustained an hypoxic or ischemic insults in the course of labor, delivery or the immediate neonatal period. I therefore am not recommending Jordan for inclusion into the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Jordan did not suffer a neurological injury due to oxygen deprivation or mechanical trauma during labor, delivery, or resuscitation in the immediate postdelivery period are credited.
Findings Of Fact Josiah was born on September 9, 2018, at OPMC. Josiah weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of OPMC submitted with the Claim. In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: In summary, the mother presented to the hospital in early labor with a reassuring FHR tracing. While under observation in the hospital, spontaneous rupture of the membranes occurred with resulting fetal bradycardia Stat Cesarean section was done with delivery of a depressed newborn. Cord pH was <6.733 with a base excess of -25. Despite cooling protocol, the newborn hospital course was complicated by multi system organ failures. EEG was noted to be severely abnormal. Head ultrasound on the day of birth showed cerebral edema and MRI on DOL 10 was consistent with HIE The child was subsequently diagnosed with spastic cerebral palsy. Dr. Willis’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into 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. 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. The opinion of Dr. Willis that Josiah did suffer an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, and continuing into the immediate post-delivery period, which resulted in brain injury, is credited. Petitioner does not contest this finding. In the instant case, NICA has retained Raj D. Sheth, M.D. (Dr. Sheth), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sheth opined: In SUMMARY, Josiah's neurological examination reveals evidence of severe neurologic impairment that is likely to be permanent affecting gross motor, fine motor, personal social and language areas. Much of Josiah's neonatal course was detailed in the history of present illness. He was born at 38 weeks gestation with Apgar scores were 1, 4 and 6 at 1, 5 and 10 minutes. He required immediate intubation head cooling developed neonatal seizures that did not persist and has an exam consistent with severe hypoxic ischemic encephalopathy. His initial chemistries and blood gases are as reported above. Dr. Sheth’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: As of the time of this examination and evaluation Josiah's case indicates that he suffers from both a substantial mental and substantial physical impairments that are permanent. These impairments are consistent with an injury to the brain acquired due to oxygen deprivation occurring during labor and delivery. 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. Sheth. The opinion of Dr. Sheth that Josiah did suffer a substantial mental and motor impairment, due to oxygen deprivation that was acquired in the course of labor and delivery, is credited. Petitioner does not contest this finding.
