Findings Of Fact Amy Nicole Alvarez was born on June 16, 2010, at Jackson South Community Hospital in Miami, Florida. Michael S. Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Amy and to review her medical records. Dr. Duchowny examined Amy on July 2, 2014. In an affidavit dated September 22, 2014, Dr. Duchowny reported his findings and gave the following opinion: In summary, Amy’s neurological examination today reveals mild right spastic hemiparesis, speech dysarthria and a complex visual agnosia. She additionally evidences microcephaly. Although I am concerned about Amy’s overall cognitive development due to her microcephaly, she appears to be progressing satisfactory and is making progress with respect to verbal communication both in the receptive and expressive domains. Her visual impairment is likely to be centrally-based. I had an opportunity to review Amy’s medical records. It contained information that is consistent with Amy’s overall history but I have not reviewed Amy’s brain MRI scans. However, in view of Amy’s relatively good mental development and only mild degree of motor impairment, I would not recommend inclusion within the NICA program. As such, it is my opinion that AMY NICOLE ALVAREZ is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of AMY NICOLE ALVAREZ. (Emphasis in original.) A review of the file does not show any contrary opinion, nor was any potential contrary expert disclosed during the telephone hearing on the Motions for Summary Final Order. The opinion of Dr. Duchowny that Amy does not have a permanent and substantial mental or physical impairment is credited.
Findings Of Fact By stipulation filed January 18, 1994, petitioner and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was [filed] on behalf of the above-styled infant against NICA on behalf of JORDAN KYLES, DENISE DESIR (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, JORDAN KYLES was born at Mercy Hospital on November 1, 1990, and Mercy Hospital was a licensed Florida Hospital and the attending physician, Dr. Luis G. Martinez, was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that a "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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. The parties agree that JORDAN KYLES suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his report dated September 2, 1993. A copy of this report has been attached hereto and incorporated herein as Exhibit 1. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon the stipulation, the parties request the hearing officer rule on Petitioners' claim based upon this Stipulation, and the attached medical record. The stipulation and neurological examination of Jordan reveal that he suffered a left brachial plexus palsy injury, and that a brachial plexus palsy injury is not a brain or spinal cord injury and further, does not result in mental injury. Moreover, Jordan's mental functioning is age appropriate and not impaired due to any birth related complications.
Findings Of Fact Ian Ocasio was born on April 20, 2010, at Winnie Palmer Hospital for Women and Children in Orlando, Florida. Ian weighed 2,749 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ian. In a medical report dated September 20, 2013, Dr. Willis opined: In summary, the baby was delivered by Cesarean section due to preterm labor and a recent genital herpes outbreak. Herpes cultures from the baby were negative. There was no fetal distress during labor. The baby was not depressed at birth and did not require any resuscitation. Umbilical cord blood gas was not done. Apgar scores were normal. 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. A review of the file does not show any contrary opinions, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinion of Dr. Willis that Ian did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post- delivery period is credited.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
