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 Arielle Rodriguez was born on September 28, 2010, at Winnie Palmer Hospital for Women and Babies located in Orlando, Florida. Arielle weighed 3,394 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Arielle, 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 in pertinent part as follows in an affidavit dated August 28, 2014: I have reviewed the medical records for the above individual. The mother, Bethzaida [sic] Calderon was a 19 year old G1 with no significant prenatal problems. She was admitted to the hospital at 37 weeks with spontaneous rupture of the membranes and active labor. The fetus was noted to be in a breech presentation. Cesarean section was done without difficulty. Birth weight was 3,394 grams. Apgar scores were 4/9. The umbilical cord blood gas was normal with pH of 7.24. Newborn evaluation stated the baby was “clinically well.” The newborn hospital course was uncomplicated. Hospital discharge note on DOL 3 has a discharge diagnosis of healthy female. The baby was subsequently diagnosed with developmental delay at 5 to 6 months of age. MRI at about one year of age was normal. Laboratory evaluation, including genetic studies (microarray) was negative. A note from 2 years of age states the child had spastic quadraparesis of unknown etiology. In summary, the baby was delivered by Cesarean section due to breech presentation. The baby had a normal cord blood gas (pH 7.24) and a normal and uncomplicated newborn hospital course. There was nothing to suggest a birth-related hypoxic injury. Developmental delay was noted at 5 to 6 months of age. MRI at one year was normal. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Arielle and to review her medical records. Dr. Duchowny examined Arielle on June 25, 2014, and opined in pertinent part as follows in his affidavit dated August 28, 2014. Arielle is 3 years old and has a longstanding history of motor delay. Her parents indicated that she has a combination of both increased and decreased muscle tone and that she is spastic. Arielle cannot walk independently and did not sit until age 18 months. She has never stood on her own and tends to move around by combat crawling. She did not roll over until age 8 months. Both arms and legs are affected equally and there is no laterality to her muscular disability. She is wheelchair-bound. Arielle participates in physical and occupational therapy through her prekindergarten program at Lake Silver Elementary School in Orlando. She participates in 2 sessions per week, each lasting 30 minutes. She wears AFOs and wrist splints and is under surveillance by orthopedic surgery. She has never required surgery and from an orthopedic standpoint, has been stable. In contrast, Arielle’s motor disability and cognitive development have proceeded quite well. Her mother indicated that "mentally, she is fine”. In fact, she tests out above average and her language skills have always been advanced. Her speech is clear and she is very sociable. There have been no behavioral problems, cognitive or motor regression. Arielle is on no intercurrent medications. She has never had seizures. She has never been examined by an ophthalmogist. Her vision and hearing are both good and her appetite is stable. She sleeps through the night. The physical examination revealed a well- developed, well nourished, wheelchair bound, socially appropriate 3-year old girl. Arielle’s height and weight were not measured due to her restriction of being in a wheelchair. Her head circumference measured 50.3 centimeters which is within standard percentiles. There are no neurocutaneous stigmata. She does not have a darkly pigmented nevus on the right lower leg. There are no other neurocutaneous features. The spine is straight without dysraphism. The anterior and posterior fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. There are no signs of peripheral dysmorphism. The lung fields are clear. The heart sounds are strong with out murmurs or rubs. The abdomen is soft and nontender without palpable liver, spleen or kidneys. Peripheral pulses are 2+ and symmetric. The neurologic examination revealed an alert, pleasant and cooperative child who initially was shy but ultimately warmed up during the evaluation. Arielle is quite engaging and she clearly understands everything going on in her surround. She interacts well with her parents and maintains an age appropriate stream of thought and attention. Her speech is fluent and well articulated and she follows simple commands without problems. She was not overly fearful. The motor examination reveals a complex pattern of abnormality. Arielle demonstrates static hypotonia but demonstrates prominent hypertonicity with spasticity. She additionally evidences truncal ataxia and has a dyskinetic syndrome with involuntary movements and intermittent tongue thrusting. Drooling is noted intermittently. She is unable to stand and bear weight and demonstrates a plantigrade attitude. There is prominent scissoring of the lower extremities. No specific focal weakness or atrophy is noted and there are no fasciculations. Her head control is good. She is unable to maintain a sitting or standing balance. Placing and stepping responses are elicited. In summary, Arielle’s neurologic examination reveals a prominent motor disability at a level of development approximating 8 months. In contrast, her mental development is fully on target without evidence of a cognitive deficit. There are no specific focal or lateralizing findings on examination to suggest a lateralized brain lesion. I am familiar with the Florida Birth- Related Neurological Injury Compensation Plan (the “Plan”) and the standards imposed by the Plan for compensability of potential claims. Based upon my review of the medical records as described herein and in my report, and further based upon my evaluation of ARIELLE RODRIGUEZ, I have formed an opinion as to whether ARIELLE RODRIGUEZ qualifies for compensation under the plan. I had an opportunity to review medical records which confirm the parent’s history and add little in the way of diagnostic information. Arielle’s healthcare providers have not established a firm diagnosis of her motor disability although further workup is planned. There is no historical or physical evidence of intrapartum hypoxia or mechanical injury. I therefore do not believe that Arielle should be considered for compensation within the NICA Program. Her mental development is normal and there is no indication of an intrapartum event causing her neurological disability. 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 or spinal cord 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. Duchowny’s opinion that Arielle does not show a significant mental impairment and that there is no indication of an intrapartum event causing her neurological injury. Dr. Duchowny’s opinion is credited.
The Issue At issue is whether Monifa Olamina, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Dashea Jackson and Ifagbemi Olamina are the natural parents and guardians of Monifa Olamina, a minor. Monifa was born a live infant on July 31, 2002, at Putnam Community Medical Center, a hospital located in Palatka, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Monifa's birth was Michael Akhiyat, 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. Monifa's birth and immediate newborn course At or about 2:30 a.m., July 31, 2002, Mrs. Jackson, with an estimated delivery date of August 12, 2002, and the fetus at 38 weeks' gestation, was admitted to Putnam Community Medical Center, with complaints of contractions since 10:20 p.m., July 30, 2002. At the time, strong, regular contractions (at a frequency of 1-2 minutes) were noted; the membranes were intact; vaginal examination revealed the cervix at 9 centimeters dilation, 100 percent effacement, and the fetus at 0 station; and fetal monitoring was reassuring for fetal well-being, with fetal heart rate in the 110s, with variability present. At 2:50 a.m., fetal heart rate continued in the 110s, with long term variability and accelerations present; at 2:53 a.m., Mrs. Jackson's membranes were artificially ruptured, with clear fluid noted; and soon thereafter an ISE (internal scalp electrode) was applied, IVF (intravenous fluid) bolus was started, and 02 (oxygen) per mask was given. At 3:00 a.m., variable decelerations were noted, with pushing; at 3:05 a.m., complete cervical dilation was documented; and at 3:09 a.m., Monifa was delivered, with vacuum assistance. Upon delivery, Monifa was bulb-suctioned, given blow-by oxygen, and accorded tactile stimulation. Apgar scores were noted as 5 and 8, at one and five minutes, respectively.3 Following stabilization, Monifa was transferred to the newborn nursery, where she was received at 3:17 a.m., and where she remained until discharged with her mother on August 1, 2002. In the interim, Monifa's new born course was normal, except for a sacral dimple and evidence of segmentation abnormalities, noted August 1, 2002. Given those issues, an appointment was made at Shands Children's Hospital at the University of Florida (Shands) for August 5, 2002, for an ultrasound of back and x-ray of spine (lumbar and sacral), and on discharge instructions were given to follow-up with the appointment. As instructed, Mrs. Jackson presented with Monifa at Shands on October 5, 2002. Ultrasound Lumbar and Sacral, noted the following findings and impression: FINDINGS: Clinical History: Ultrasound examination of the lower spine was done in this patient with a sacral dimple and the history of segmentation anomalies. There are no prior studies for comparison. Discussion: The spinal cord ends at about L2, a normal level. There is no evidence of tethering or a lipoma in the cord or nerve roots. There is no focal meningocele. IMPRESSION: Examination of the lower spine is normal. Monifa's subsequent development On August 19, 2002, Monifa was admitted to Shands on referral from her primary care doctor (Dr. Marcie Howard) for failure to thrive. At the time, the history of her illness was noted as follows: . . . The patient has had difficulty breast feeding and has been losing weight, although she has had a reasonable number of wet diapers and appears to try to take the breast, it is difficult to estimate how much she is getting. Her mother does indicate she tries to feed her about every two hours and that she latches on, but only for about 15 or 20 minutes and then does seem to have some difficulty staying on task. She often falls asleep. There is no spitting up, vomiting, diarrhea or emesis. Her weights have been six pounds at birth, four pounds eleven ounces on day six, four pounds eight ounces on day sixteen and four pounds fourteen ounces on day 19. That was measured at the scale in Dr. Howard's office. Her mother has tried to give her formula and been unsuccessful. She otherwise seems to [be] fine to her mother . . . . Monifa was discharged from Shands on August 28, 2002. At the time, her Discharge Summary described Monifa's hospital course, as follows: The patient was admitted to evaluate for poor feeding and the decrease in body weight . . . . OT, PT, Lactation and Nutrition consults were involved, and the patient was evaluated poor sucking coordination. Patient was once NPO, then NG tube inserted to feed formula . . . . BMP, thyroid, ammonia, urine organic acid/serum amino acid were sent originally, and all showed normal and urine organic acid/serum amino acid, which are still pending. Brain MRI was done with normal findings . . . . Patient's body weight was increased from 2,212 gm on admission to 2,762 gm today. We also sent HIV antibody which showed a negative, and a chromosome karyotype type which is still pending. Sara Plager was consulted to evaluate for swallow study, and at this point, she did not feel it was necessary to have one. Because of her cardiac murmur, we took chest x-ray and the EKG to discharge home, which both showed within normal limits. We also consulted with Developmental Evaluation Intervention to setup to see Monifa after discharge home. Patient noted DC home with NG tube feeding . . . and they will follow-up with primary care provider. Monifa was fed via NG tube for approximately 6 months,4 and then transitioned to a bottle. Of note, following discharge from Shands, Monifa did not require re-hospitalization. On May 21, 2004, Monifa was seen at the Pediatric Neurology Clinic, Shands Children's Hospital, for developmental delay. Dr. Paul R. Carney, a pediatric neurologist, reported the results of his evaluation, as follows: Monifa is a 1-9/12 year-old African-American female seen at today's Pediatric Neurology Clinic for her developmental delay. She is accompanied to clinic by her mom who provides the history. Her mom states that presently at 21 months of age the baby can scoot and the baby may sit in a tripod fashion for approximately two minutes. The baby is unable to get herself into a sitting position. She currently says "Dada" and will point. Other than that she is not crawling, is not making gains towards pulling herself up or moving towards walking. She has been in therapy. Mom reports that the child has undergone an EEG in October 2003. It was abnormal with slowing and disorganization, nonspecific cortical neuro dysfunction. * * * Review of systems: Mom describes her as basically being healthy. Developmental history has been her marked area of concern in which she only rolled over at 7 months and has just now started to tripod with some assistance. * * * On exam the baby has a height of 79.0 cm, weight of 9.1 kg, head circumference of 44 cm which is less than the 5th percentile. . . . On general exam HEENT reveals a closed anterior fontanel, microcephalic child with marked [a]symmetrical face. . . . Baby is noted to have multiple Mongolian spots on back. It is unclear if baby has cafe au lait spots. . . . Specifically on nerve exam, one of the most striking features about this child is her asymmetrical face. She has decreased movement of her right upper face as well as her lower face. She is noted to have drooling from her face on the right, widened palpebral fissure. The pupils are equal, round, and reactive to light. She does demonstrate full extraocular movements. Tongue is noted to be midline. Motor exam is most noticeable for marked hypotonia. Baby has significant head lag, given her age of 21 months of age. The baby, though, is noted to have positive brisk reflexes in lower extremities and upper extremities as well. Sensory is grossly intact. Cerebellar reveals no tremor when reaching out for objects. Impression: The patient is presenting most likely with a central nervous system disorder. Given the presence of brisk reflexes and her low tone, we have concern that she may have had an intrauterine stroke that was not apparent on the first MRI that was done when she was a few weeks of age. A stroke-like finding on MRIs could certainly explain her asymmetrical face and may indicate that there was some type of distress which has been a cause for her developmental delay. Plan: At this time we will repeat an MRI. We will send labs for a CMP, urine organic acid, and plasma amino acids. We will follow her back in clinic following these studies to further review [with] the mom. . . . The brain MRI was done July 9, 2004, and noted the following findings and impressions: Findings: Current study demonstrates striking cerebellar and pontine atrophy. There is a suggestion that the spinal cord is on the lower limits of size as well. In retrospect, the previous MR demonstrated a somewhat small cerebellum and cerebrum. These changes were not striking enough at that time to call abnormal. However, finding is more pronounced when compared to the current exam. No hydrocephalus, focal lesion, or intra-axial or extra-axial fluid collections are seen. IMPRESSION: Striking cerebellar and pontine atrophy. Differential diagnosis would include pontocerebellar atrophy syndrome, pontocerebellar hypoplasia, and spinocerebellar atrophy syndrome. Apparently, Monifa moved with her family to Jacksonville following her MRI, and returned to Gainesville in early 2006. Then, on March 30, 2006, on the recommendation of her pediatrician, she was again seen at the Pediatric Neurology Clinic for evaluation. The results of that evaluation noted: . . . Today, mom reports that the patient has been slowly progressing and gaining milestones. At 3 years 8 months old she now talks both single words and phrases. She converses with her 2-year-old sister and repeats what her sister says. She cannot walk independently, however, she can walk with difficulty if someone supports her either by the hands and arms or by the trunk. She is able to feed herself. She has been sitting by herself since she was a little over 1 year of age. She was getting some therapy services until she turned 3, but then the services terminated. She was not enrolled for any school this year and therefore received no therapy from the school system. * * * OBJECTIVE: PHYSICAL EXAM: Today her height is 91.3 cm. Her head circumference is 48 cm, and her weight is 12.65 kg. . . . Monifa is awake and tracks with her eyes. She seems interested in her surroundings. She holds on to her mom for balance, standing beside mom's chair and holding onto mom's leg. She bends forward at the hips most of the time. HEENT reveals an asymmetrical face, which appears to be perhaps somewhat weak on the right. She also has a slightly disconjugate gaze. She is hypotonic both centrally and peripherally. She has brisk reflexes throughout and appears to have an up-going toe on the right and down-going toe on the left. She is able to grasp onto a sticker that has been given to her, but does not spontaneously grasp when the examiner tries to hand her a pen. She ambulates with extreme difficulty occasionally taking a step which is very ataxic, and she has extremely poor balance and would fall immediately if she was not supported. She can sit on the exam table by herself, but is noted to hold one hand down on the table for support. ASSESSMENT: This is a 3-year 8-month-old child with history of developmental delay, hypotonia, and ataxia. Past MRI has shown cerebellar and pontine atrophy. She is gaining in milestones and is not declining. Because she continues to gain milestones, at this time, we do not think that she has spinal cerebellar atrophy, but most likely cerebral palsy. PLAN: We have discussed this with mom and told her that this is likely cerebral palsy which is caused by in the birth injury.[5] We are going to repeat her MRI to see if there has been any progression in her atrophy. We are going to sign her up for Children's Medical Services because the patient needs aggressive PT, OT, and Speech Therapy. We are going to have her come back to our clinic in three months. The brain MRI was done May 5, 2006, noted the following findings and impression: Findings: The previous examination demonstrates striking cerebellar and pontine atrophy consistent with possible pontocerebellar atrophy syndrome, pontocerebellar hypoplasia, and spinocerebellar atrophy syndrome. Today's examination demonstrates the same findings. There is apparent flattening of the clivus consistent with likely platybasia. There has been overall progression of cerebellar atrophy and malformation of the pons. There has been interval development of an area of increased signal intensity seen on FLAIR and T2 imaging within the left frontal lobe. This is uncertain etiology and may represent a focal area of gliosis. Otherwise, the brain density is appropriate for a young child. There is minimal retained interstitial water in the cerebral white matter. Myelination is appropriate for age with evidence of myelination in corticospinal tracts, visual pathways and corpus callosum. There is no hydrocephalus. IMPRESSION: Overall progression of cerebellar atrophy and pontine malformation with interval development of an area of increased signal intensity in the left frontal lobe of uncertain etiology. This may represent a focal area of gliosis. See above. On August 3, 2006, Monifa was seen at the Pediatric Neurology Clinic in follow-up for cerebellar atrophy. The results of that evaluation noted: . . . Monifa has been evaluated for speech and language [May 9, 2006]. It is noted that she is approximately one and a half to two years behind in her language development. She remains delayed in her motor skills as well. She still is unable to walk. She has very poor balance but can hold onto a chair and move around the chair without assistance. She definitely cannot ambulate independently. Her mom reports the patient is speaking in two to three word phrases but not in sentences. She does try to mimic her sister. The patient has been signed up for Children's Medical Services, however, mom is still waiting for a nurse to be assigned to her case so she can start getting PT, OT and speech therapy. Overall, Mom does not feel as though Monifa has changed significantly since we saw her on March 30th. She continues to be concerned because the patient is unable to walk. Today, her weight is 12.7 kg. . . . and her head circumference is 47.7 cm. Monifa is sitting in her stroller chair. Her face is asymmetrical, appearing to be weak on the right side. She has very little verbal output but when she does speak, she is dysarthic.[6] She is hypotonic throughout. She has moderately brisk reflexes throughout. She has an upgoing toe on the right and a tight heel cord on the left. When stood up, the patient cannot stand without assistance. She has to be firmly supported. She does take a few steps, which are very ataxic. Assessment: This is a 4-year-old child with progressing cerebellar atrophy. Today, we are going to send her to the lab for repeat serum amino acids and urine organic acids. We are also sending a comprehensive spinal genetics-testing screen to Athena Laboratories for cerebellar atrophy. We are going to get a lactate, a pyruvate and ammonia level. We are going to request a Genetics consult to request their assistance in trying to determine the etiology of this patient's symptoms. . . . Today we have discussed the patient's most recent MRI scan with mom. As of this time, we are not sure whether or not she has spinocerebellar atrophy syndrome or whether she may have some metabolic disorder. Mom has asked if these conditions are progressive and she has been told that they are, however, at this point in time, the patient does not have a definitive diagnosis . . . . Insofar as the record reveals, Monifa has not been seen at the Pediatric Neurology Clinic since her visit of August 3, 2006. However, she was seen for a genetics consult by Charles Williams, M.D., at the Division of Genetics, Department of Pediatrics, Shands Children's Hospital, on February 13, 2007. The results of that consultation noted: The evaluation thus far has resulted in a normal peripheral blood karyotype, normal blood ammonia, essentially normal paravate, and lactate levels and she has had an [A]thena cerebellar ataxia mutation panel which was reported as normal. As well, she has had normal plasma amino acid studies. * * * She has been moving forward developmentally and the mother thinks that her mental age is somewhere between three and four years of age. There is no history of any progressive ataxia or loss of gross motor milestones. * * * On physical examination, Monifa was an interactive little girl who established eye contact and had obvious facial asymmetry with the left hypoplastic mandible and maxilla . . . She was able to smile with a reasonably symmetric facial expression. Her eating has been reported by the mother as fairly well now although she did have some difficulties with swallowing in the first year or two of life. The extremities show no abnormalities. The chest exam normal, abdominal exam negative. A skin exam was free of any birthmark abnormalities. We were able to review her two MRIs as well as her initial CT scan which was done at about two months [sic] of age with our neuroradiologists, and when we looked at all of these, it seemed evident that there was pontine atrophy and cerebellar atrophy present since the first CT scan was performed at age 2 months [sic] and the findings are consistent with actually nonprogressive, pons/brain stem atrophy problem. It is most reminiscent of some type of intrauterine disruption that would cause focal abnormalities in this area. Impression: Our thought at this time is that Monifa does not have any type of neuro- degenerative ponto cerebellar problem. We think that her facial abnormalities in combination with the brain stem findings on the various brain images points to some type of disruption problem . . . that occurred prenatally. However, it is somewhat noteworthy in that she does not show any obvious features of Moebius sequence in terms of her facial examination and although she has marked facial hypoplasia on the left, when we reviewed the literature regarding hemifacial microsomias, we found no association with pontocerebellar atrophic problems. Nevertheless, in view of her good moving forward clinical history, I think that is most likely that her brain abnormality represents some type of acquired in utero disruption process. For the time being, I do not recommend any additional genetic studies and I do appreciate an opportunity providing consultation. Coverage under the Plan Coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. The etiology and significance of Monifa's impairments Insofar as the medical records reveal, among the physicians who have treated Monifa, and who were particularly qualified to address the etiology and significance of her impairments, none concluded that Monifa's impairments most likely resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital, or that Monifa was permanently and substantially mentally and physically impaired. Indeed, to date her physicians have not identified a unifying etiology for her impairments, but are looking to etiologies other than those associated with Monifa's birth, as a likely cause for her difficulties. Apart from the medical records, Petitioners offered no medical evidence to demonstrate the likely cause or significance of Monifa's neurologic impairments. Consequently, the proof failed to support the conclusion that Monifa suffered a "birth- related neurological injury," as required for coverage under the Plan. See, e.g., Sunshine Plumbing v. Benecke, 558 So. 2d 162, 165 (Fla. 1st DCA 1990)("[T]he claimant bears the burden of proving a causal connection between the employment and the injury."); Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("There being no medical evidence of causation, claimant here has not met her burden of proving that her medical condition was causally related to her industrial accident."); Handy v. Golden Gem Growers, Inc., 454 So. 2d 69 (Fla. 1st DCA 1984)("For conditions not readily observable or discoverable without medical examination, proof of causation requires medical testimony based on reasonable medical probability that the injury . . . is causally connected to the employment."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("[D]etermining . . . cause of a non- observable medical condition, such as psychiatric illness, is essentially a medical question," requiring expert medical evidence.); Broadfoot v. Albert Hugo Association, Inc., 478 So. 2d 863, 865 (Fla. 1st DCA 1985)("[L]ay testimony cannot be used to establish causal relationship within reasonable medical probability as to conditions and symptoms that are not readily observable.").7
Findings Of Fact Harper Close was born on June 5, 2017, at Bayfront Health Port Charlotte in Port Charlotte, Florida. Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records of Harper Close, and her mother, Danielle Angelo, and to opine whether an injury occurred in the course of labor, delivery or resuscitation in the immediate post-delivery period at Bayfront Health Port Charlotte due to oxygen deprivation or mechanical injury. In a report dated December 30, 2017, Dr. Willis described his findings in pertinent part as follows: In summary: The prenatal course was essentially benign. The mother presented in labor at term. Vacuum delivery was done for fetal tachycardia and variable. FHR decelerations. The baby was not depressed at birth. Apgar scores were 7/9 without the need for resuscitation. Cord blood gas (venous) had a pH of 7.23, suggesting the baby was not hypoxic or acidotic during labor and delivery. The baby was stable enough to remain with the mother until about 30 minutes after birth. This would be consistent with no oxygen deprivation during the immediate post-delivery period. After the post- delivery period, respiratory distress developed and MAS was diagnosed. A complicated newborn hospital course followed. Fortunately, head ultrasound and MRI did not have findings suggestive of HIE or brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post- delivery period. Respiratory distress due to meconium aspiration syndrome became apparent after the post-delivery and resulted in a complicated newborn hospital course. Attached to Respondent’s Motion for Summary Final Order is the affidavit of Dr. Willis, dated February 22, 2018. In his affidavit, Dr. Willis affirms the findings in his above-quoted report and maintains that his opinions are within a reasonable degree of medical probability. NICA also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Harper Close and Danielle Angelo’s medical records, conduct an Independent Medical Examination of Harper Close, and opine as to whether Harper Close suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Robert Close and Danielle Angelo, and performed an evaluation on February 7, 2018. In a report authored after the neurological evaluation, Dr. Duchowny summarized his findings, in pertinent part, as follows: In SUMMARY, Harper’s neurological examination today reveals no specific focal or lateralized findings. She is developing on schedule. A review of medical records confirms history provided by the family. Harper had prominent respiratory failure and went into shock due to meconium aspiration syndrome. She was anuric for the first 2 days of life and treated aggressively for hypertension. Blood pressure was maintained on dopamine and dobutamine and she additionally received vasopressin and corticosteroid therapy. A head ultrasound on June 5 was within normal limits and an MRI scan of the brain performed on June 19, 2017 revealed a right posterior parietal cephalhematoma with a “cystic left basal ganglia.” Today’s evaluation does not reveal either of a substantial mental or motor impairment. Harper has done well following meconium aspiration syndrome and I believe that she will continue to develop normally. I am not recommending Harper for inclusion within the NICA program. Respondent’s Motion for Summary Final Order also relies upon the attached affidavit from Dr. Duchowny, dated February 20, 2018. In his affidavit, he affirms his findings contained in his report and opines, to a reasonable degree of medical probability, that Harper Close has not sustained either a substantial mental or physical impairment, and opines that he believes she will continue to develop normally. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their opinions are credited.
Findings Of Fact Victoryia Williams was born on May 3, 2012, at North Shore Medical Center located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Victoryia. In a report dated July 15, 2015, Dr. Willis described his findings in pertinent part as follows: Delivery was by spontaneous vaginal birth. Birth weight was 3,740 grams or 8 lbs 4 oz’s. Amniotic fluid was clear. The baby was not depressed at birth. Apgar scores were 9/9. The baby had a normal newborn hospital course. Admission physical exam in the nursery diagnosed “term newborn female.” Transition was stated to be “unremarkable.” The baby was out of the nursery and with the mother about 5 hours after birth. Records after hospital discharge indicate the child developed seizures at about 5 months of age. Genetic evaluation was done at about 14 months due to seizures and no genetic abnormalities were found. The baby was not dysmorphic. MRI at this time showed volume loss. In summary, prenatal course was uncomplicated. Labor was induced at 39 weeks. There was no fetal distress during labor. A variable FHR pattern developed just prior to delivery and would be considered fairly normal second stage of labor FHR pattern. This period of variable decelerations did not result in oxygen deprivation to the baby. The baby was delivered by spontaneous vaginal delivery and was not depressed at birth. The newborn hospital course was uncomplicated. 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. In an affidavit dated July 17, 2015, Dr. Willis confirmed his opinion as stated in his medical report and opined as follows: It is my opinion that the prenatal course was uncomplicated. Labor was induced at 39 weeks. There was no fetal distress during labor. A variable FHR pattern developed just prior to delivery and would be considered fairly normal second stage of labor FHR pattern. This period of variable decelerations did not result in oxygen deprivation to the baby. The baby was delivered by spontaneous vaginal delivery and was not depressed at birth. The newborn hospital course was uncomplicated. 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 labor, delivery or the immediate post delivery period. A review of the file in this case reveals that there have been no 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.
The Issue At issue in this proceeding is whether Alen A. Valiente suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Alen A. Valiente (Alen) is the natural son of Dirvisley Rodriguez and Alex Valiente. He was born a live infant on June 13, 1992, at Mount Sinai Medical Center, a hospital located in Miami Beach, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Alen was Robert Fields, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. During the course of Alen's delivery difficulty was encountered with the delivery of his head and vacuum extraction was applied. Subsequently, difficulty was also encountered in the delivery of Alen's body when a shoulder dystocia developed, and upon extraction Alen suffered an injury to his left upper brachial plexus which ultimately evidenced a left upper brachial plexus palsy (Erb's palsy). Upon delivery, Alen presented with Apgar scores of 4 at one minute and 7 at five minutes, required bagging due to poor respiratory effort, and was transferred to the neonatal intensive care unit (NICU). Upon admission to NICU, Alen was observed to be limp, pale, and suffering respiratory distress, which necessitated the continued administration of oxygen, poor tone was noted in his left upper extremity, and a large cephalhematoma was noted on the surface of the cranial bone. A CT scan of the brain was performed on June 15, 1992. That scan reflected that Alen had suffered depressed fractures of the right parietal bone with overlying cephalhematoma and underlying subdural hematoma. A CT scan follow-up of June 18, 1992, evidenced decreasing size of the subdural, and the cephalhematoma gradually disappeared over three months. On June 22, 1992, following treatment for hyperbilirubinemia with phototherapy, Alen was discharged to the care of his parents. Although Alen suffered perinatal asphyxia, as well as skull fractures, a cephalhematoma and a subdural hematoma, as a consequence of a difficult extraction, the proof fails to demonstrate that he suffered any significant brain insult as a consequence of those events. Indeed, Alen was most recently examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who observed that, apart from the left upper brachial plexus palsy (Erb's palsy), there were no other clinical manifestations of physical impairment and Alen's mental status was age appropriate. In this regard, it is notable that Alen rolled over at five months, sat at six months, stood at eight months, walked at 10 months, said words at twenty months, was fully toilet trained by age two and, consequently, achieved all of his milestones without difficulty. It is further notable that Alen is able to walk without difficulty despite his Erb's palsy, that his speech is well articulated, and his conduct is socially and behaviorally age appropriate. Given the foregoing, it is the opinion of Dr. Duchowny, which is credited, that, apart from the Erb's palsy, Alen does not suffer any substantial physical impairment and, likewise, does not suffer any substantial mental impairment. As for the Erb's palsy, such physical impairment arose from an injury to "the roots that are outside the spinal cord" (the brachial plexus nerve) and such injury is not, anatomically speaking, an injury to the brain or spinal cord. Accordingly, the proof fails to demonstrate that Alen suffered an "injury to the 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 . . . which render[ed] . . . [him] . . . permanently and substantially mentally and physically impaired" so as to be entitled to compensation under the Florida Birth-Related Neurological Injury Compensation Plan. Section 766.302(2), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the petition for compensation filed by Dirvisley Rodriguez and Alex Valiente, as parents and natural guardians of Alen A. Valiente, a minor, be and the same is hereby denied with prejudice. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of June 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June 1995.
