Findings Of Fact Addyson Tilka was born on June 22, 2012, at Bayfront Medical Center, Inc., located in St. Petersburg, Florida. Addyson weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Addyson. In an affidavit dated August 3, 2016, Dr. Willis opined as follows: In summary, the baby was delivered prematurely at 34 weeks due to premature rupture of the membranes. Apgar scores were 5/8. The baby had respiratory distress syndrome of prematurity. Oxygen and ventilation support was required for respiratory distress. Neurologic exam was appropriate for gestational age. The baby did not have seizures. No head imaging studies were done during the newborn hospital course. There was no apparent obstetrical event that resulted in loss of oxygen deprivation or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Addyson and to review her medical records. Dr. Sigurdardottir examined Addyson on January 20, 2016. In an affidavit dated August 5, 2016, Dr. Sigurdardottir summarized her examination of Addyson and opined as follows: NEUROLOGICAL EXAM: Mental status: Addyson is a beautiful, interactive girl who speaks in full sentences with minor pronunciation difficulties. She has no autistic features and seems age appropriate in all aspects. Cranial nerves are intact. Pupils are equal and reactive to light. Visual fields are full. There is nystagmus, no amblyopia, no strabismus. Her facial expressions are symmetric. There is no hearing abnormality noted. Her motor exam reveals normal muscle tone, motor strength, symmetric reflexes are present. Balance and coordination seems grossly intact for age. ASSESSMENT AND PLAN: In summary, here we have a 3 year 6 month old girl who was born premature at 34 weeks and needed a neonatal intensive care unit (NICU) stay due to respiratory compromise. There are, however, no clear concerns of her development at this time. No suggestions of physical impairment. There is nothing on history or record review that suggests neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: there is no evidence of perinatal neurologic depression and no evidence of ischemic injury at birth or in the immediate postnatal period. Results as to question 3: We would expect full life expectancy as no noted abnormalities are found on exam. In light of the above-mentioned details, I do not recommend Addyson to be included in the Neurologic Injury Compensation Association program and will be happy to answer additional questions. All of my opinions are within a reasonable degree of medical probability. 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 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. Sigurdardottir’s opinion that Addyson does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
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.
The Issue At issue is whether Eli Joe Arellano, Jr., a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Cathy Arellano and Eli Joe Arellano, Sr., are the natural parents of Eli Joe Arellano, Jr., a minor. Joe was born a live infant on February 17, 1999, at Fort Walton Beach Medical Center, a hospital located in Fort Walton Beach, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Joe's birth was Thomas H. Moraczowski, 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. Coverage under the Plan Pertinent to this case, 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. See also §§ 766.309(1) and 766.31(1). In this case, Petitioners are of the view that Joe suffered a "birth-related neurological injury" because it is their "belief . . . [based on] the medical records and injuries sustained at birth [such as bruises on top of the head and face and broken collarbone] . . . Joe has sustained a spinal cord or brain injury resulting in Cerebral Palsy Hypotonia." (Pre- Hearing Stipulation, paragraph B1) In contrast, NICA is of the view that Joe did not suffer a "birth-related neurological injury" because his impairments were not occasioned by an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation" and, regardless of the etiology of Joe's impairments, he is not "permanently and substantially mentally and physically impaired." (Pre-Hearing Stipulation, paragraph B2). Here, Respondent's view is most consistent with the proof. Joe's birth and immediate postnatal course At or about 3:30 p.m., February 16, 1999, Mrs. Arellano, with an estimated delivery date of February 21, 1999, and the fetus at 39 2/7 weeks gestation, presented to Fort Walton Beach Medical Center, in labor. At the time, Mrs. Arellano's membranes were noted as intact, and vaginal examination revealed the cervix at 5-6 centimeters dilation, effacement at 75 percent, and the fetus at -3 station. Uterine contractions were described as moderate, at a frequency of 5-7 minutes, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130-beat per minute range. Mrs. Arellano was admitted to labor and delivery at 4:15 p.m.; an IV was started at 5:18 p.m.; her membranes were artificially ruptured at 5:22 p.m., with clear fluid noted; and Petocin augmentation was started at 6:20 p.m. Thereafter, Mrs. Arellano's labor slowly progressed until 1:55 a.m., February 17, 1999, when complete cervical dilation was noted, and Joe was delivered vaginally at 2:01 a.m. Notably, fetal monitoring revealed a reassuring fetal heart rate throughout the course of labor, but, at 10 pounds 7 ounces, Joe was large for gestational age (LGA), and delivery was complicated by a shoulder dystocia, which was relieved by hyperflexion of the legs to the maternal abdomen, suprapubic pressure, and corkscrew rotation of the infant's posterior shoulder to the anterior plane. Nevertheless, although not diagnosed at the time, Joe suffered a fractured clavicle during delivery, which healed without apparent complication. At delivery, Joe was reported to be "healthy and vigorous," and did not require resuscitation. Cord blood pH was reported as normal (7.25), as were Joe's Apgar scores, which were noted as 9 and 9, at one and five minutes, respectively.1 Following delivery, Joe was transported to the regular newborn nursery, where he was received at 2:30 a.m. Newborn assessment noted "L[igh]t bruising to forehead/top of head" and "mild" molding, observations that were not shown to have any clinical significance in this case. Otherwise, Joe's newborn assessment was unremarkable, as was the remainder of his postnatal course, and he was discharged with his mother on February 19, 1999. Joe's subsequent development Following discharge from Fort Walton Beach Medical Center, Joe's early development was age appropriate; however, over time, his mother voiced a number of concerns about his development, and in December 2000 he was referred by his pediatrician to the Child Neurology Center of Northwest Florida for evaluation. There, Joe was initially seen for a neurology consultation by Tim S. Livingston, M.D., who reported the results of his January 4, 2001, evaluation, as follows: REASON FOR CONSULTATION: Hypotonia. PRESENT ILLNESS "Joe" is a 22-month-old, possibly left- handed young boy who presents with his family for evaluation of the above concerns. His mother indicates she has several concerns about his development. She is most concerned about his gait. She indicates that ever since he has been walking he has had a tendency to in-toe (right greater than left). This was not significantly disabling and did not significantly impair attainment of his milestones. However, over the last month she feels this has worsened and that he has more frequent falls. She does not notice any diurnal variation of this gait or any apparent dystonia. She also indicates that she has concerns about his speech. She indicates that he said his first words at 12 months and knows approximately 10 words at the present. However, she feels the words he does know are poorly articulated. He is able to point to some body parts and understands "yes" and "no." He does make good eye contact with family members and others and is variably affectionate. He does not have significant ritualistic behavior or any apparent stereotypes. She is also concerned about his fine motor and gross motor coordination. She indicates that he is able to throw a ball but remains incoordinated when he attempts to feed himself. He does not always know how to properly hold utensils. She denies any apparent . . . regression of milestones. PAST HISTORY Antenatal: He was born to his mother after a pregnancy complicated by weight loss and gestational diabetes. There is no apparent hypertension, infection, bleeding, drug use or alcohol use. Birth: He was felt to be born at term and weighed 10 pounds, 7 ounces. His mother reports he did not have any significant immediate perinatal difficulties. Neonatal: She indicates that he did not have significant jaundice, cyanotic episodes, respiratory distress, or other problems. However, she does indicate that since the newborn period he has had constipation. Development: Held head up at 2 months, sat alone at 4 months, walked at 13 months, fed himself at 1 year. The remainder of development as per History of Present Illness. Behavior: He has frequent episodes of crying. He is somewhat shy but is affectionate when he is familiar with people. She does indicate that he does not sleep well at all. * * * NEUROLOGICAL EXAMINATION General: Healthy, alert young boy in no apparent distress. Skull: Occipitofrontal circumference 50 centimeters (75th percentile). Normocephalic, without evidence of cranial trauma. Fontanel is closed. No boney abnormalities or bruits. Neck and Spine: Supple, full range of motion, no meningeal signs. Speech and Language: As per above. Mental Status: The child was awake, alert. He follows simple commands. He was not fully compliant with language or speech testing, though spontaneous language seemed age appropriate. * * * Motor: Tone - Spontaneous observation demonstrates hypotonic posture (i.e., exaggerated kyphosis, mild froglegging), also passive range of motion demonstrates reduced tone in a generalized distribution which is mildly greater in truncal musculature. Power - there is no asymmetry of movement. He moved all extremities appropriately and symmetrically. Coordination - He was able to hold a ball appropriately and throw it. There is no obvious incoordination. Cerebellar - No apparent ataxia with spontaneous reaching and hand movements or spontaneous movements of the lower extremities. Involuntary movements - no obvious tics, tremors, chorea, athetosis or other abnormal movements. Reflexes: His tendon reflexes were 0 to 1+ at biceps, triceps, radialis, knee jerks, and ankle jerks (reduced in a generalized distribution). Gait and Stance: Spontaneous observation of his gait demonstrated bilateral in-toeing (right greater than left). His gait was not abnormally wide-based or ataxic. Heel walking and toe walking was appropriate. He was not able to comply with tandem gait. Sensation: Intact to temperature, light touch and vibration throughout. * * * ASSESSMENT Generalized hypotonia. Abnormal gait (in-toeing). Possible developmental articulation difficulties. Based on the history, I suspect that "Joe" is suffering from mild developmental hypotonia which may be benign in nature. However, potential causes such as hypothyroidism and inborn errors of metabolism need to be considered. Furthermore, abnormalities of myelinization should be considered. I am not entirely convinced that his abnormal gait is directly related to his hypotonia. It is possible that he is suffering from tibial torsion or femoral anteversion. Regardless, I do not think his gait is significantly abnormal to warrant orthopedic evaluation. His parents do give a history of significant difficulty with articulation which was difficult to confirm at bedside testing. Regardless, his cognitive and receptive language skills appear to be normal, as do most of his other developmental milestones. It is possible that he has a mild developmental speech disorder. I have discussed the above in detail with his mother and she wishes to proceed as outlined below at my recommendation. PLAN Magnetic resonance imaging of the brain with sedation. Blood work for TSH, amino acids and ammonia. Urine amino and organic acids. Physical therapy, occupational therapy and speech therapy. Return in 1 month. Over the years, Joe has had multiple consults at the Child Neurology Center, initially with Dr. Livingston and then, beginning in 2003, with Dr. J.B. Renfroe. Those consults ultimately produced an assessment of static encephalopathy, developmental delay, and initially, cerebral palsy hypotonia and later, autism/pervasive developmental disorder (PDD).2 Over the years, Joe has also undergone multiple studies to identify the etiology of his neurologic deficits, without success. Such studies have included multiple blood and urine studies, including genetic and metabolic analyses, which have been unrevealing; an MRI of the brain on February 5, 2001, which was normal; an MRI of the cervical spine on March 28, 2002, which was normal; electroencephalograms (EEGs) on February 21, 2002, and October 30, 2003, which were normal; and a video EEG on June 11 and 12, 2002, which demonstrated an abnormal generalized slowing of background activity, consistent with encephalopathy, but nonspecific with regard to etiology, and no epileptiform abnormalities or seizure activity. On March 24, 2004, following the filing of the claim for compensation, Joe was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and child neurophysiology. The results of that evaluation were reported, as follows: PHYSICAL EXAMINATION reveals an alert, reasonably cooperative, well developed and well nourished 5-year-old boy. Joe weighs 73 pounds and is 47 inches tall. The skin is warm and moist. There are no cutaneous stigmata. The neck is supple without masses, thyromegaly or adenopathy. There are no cranial or facial anomalies or asymmetries. The head circumference measures 53.1 cm, which is within standard percentiles. The cardiovascular, respiratory and abdominal examinations are unremarkable. There is bilateral pes planus. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION reveals a boy with a pleasant disposition, but poor eye contact and diminished social skills. Joe rarely speaks spontaneously. He is dysarthric for lingual and labial sounds. He does know his colors, body parts and pictures of animals. He does not drool. He understands simple commands, but his cooperation is limited. He is able to build a tower of tubes. MOTOR EXAMINATION reveals mild generalized hypotonia. Joe is able to use both hands, but prefers the right. He has well- developed pincer grasp and uses his hands bimanually. He exhibits intermittent hand waiving sterotype movements. There are no other adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 1+ and symmetric. Plantar responses are downgoing. The stance is reasonably based and he walks with symmetric arm swing. He has trouble doing tandem walk and tends to posture his upper extremities. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Joe can perform finger-to-nose and heel-to-shin movements at an age appropriate level. In SUMMARY, Joe's neurological examination, in detail, reveals evidence of immature social skills, poor eye contact, short attention span, mild generalized hypotonia and delayed speech and language development. He demonstrates no focal or lateralizing findings. Joe's neurologic findings fit best within the autistic spectrum. Findings from my evaluation together with a review of medical records . . . indicate that Joe does not suffer from a permanent or substantial mental or physical impairment and that his neurologic findings did not result from oxygen deprivation or mechanical injury at birth . . . . The etiology and significance of Joe's impairments To address the cause and timing of Joe's impairments, the parties offered, inter alia, medical records related to Mrs. Arellano's antepartum course; those associated with Joe's birth and subsequent development; and the opinions of Dr. Duchowny and Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, regarding the likely etiology and significance of Joe's impairments. As for the etiology of Joe's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Joe on March 24, 2004, and review of the medical records, that, while of unknown etiology, Joe's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. In so concluding, Dr. Duchowny observed that contrary to the clinical evidence one would expect if Joe had suffered a severe hypoxic event or mechanical injury during labor or delivery, Joe's Apgar scores were normal, his cord blood gases were normal, his neonatal course was normal, his neuro-imaging studies were within normal limits, and his EEGs were normal. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to reveal any evidence of neurologic injury having occurred during the course of labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed that the fetal heart rate was reassuring throughout the course of labor; Joe was reported to be healthy and vigorous at birth, and did not require resuscitation; Joe's Apgar scores were normal, as were his cord blood gases; and Joe's newborn course and subsequent neuro-imaging studies were normal. Finally, the medical records, including the observations of the physicians who have treated Joe, while unrevealing as to etiology, also point to the likelihood of a developmental disorder, as opposed to birth trauma, as the likely cause of Joe's impairments. As for the significance of Joe's impairments, it was Dr. Duchowny's opinion, based on his neurologic evaluation of Joe and review of the medical records, that Joe does not suffer from a substantial mental or physical impairment. Notably, Dr. Duchowny's opinion was uncontroverted, grossly consistent with the record, and credible. Given the record, it must be resolved that Joe's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain or a spinal cord occurring in the course of labor, delivery, or resuscitation, and, regardless of the etiology of Joe's impairments, he is not permanently and substantially mentally or physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
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.
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 Owen Light was born on November 26, 2013, at Florida Hospital Altamonte located in Altamonte Springs, Florida. Owen weighed 3,980 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Owen, to determine whether an injury occurred in a 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 a medical report dated November 3, 2014: In summary, there was no obvious distress during labor or delivery. The newborn was not depressed. Apgar scores were 9/9. The initial exam in the nursery noted some decreased muscle tone, but no acute distress. The baby was apparently doing well until about 12-hours after birth, when seizure activity was noted. Imaging studies showed venous thrombosis in the dural sinus. 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. The baby suffered brain injury, as indicated by the abnormal EEG and imaging studies of a venous thrombosis in the dural sinus. However, the brain injury does not appear to be related to either mechanical trauma or hypoxic injury during labor, delivery or the immediate post-delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated January 20, 2015, 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. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Owen and to review his medical records. Dr. Sigurdardottir examined Owen on July 22, 2015, and opined in pertinent part as follows in an affidavit dated August 3, 2015: The opinions expressed in my Report are accurate and my opinions are as follows: The patient is found to have a permanent substantial mental and physical impairment and is overall functioning at approximately a 7-9 month level at the biologic age of 19-20 months. He is noted to have hypotonia, delayed gross and fine motor skills, a past history of epilepsy, delayed visual maturation, although no periods of stagnation or developmental regression have been noted. There is little evidence from the records that we have reviewed to suggest a perinatal ischemic or mechanical injury as the cause for his delays. Prenatal care was complete and documentation during the vaginal delivery was continuous revealing only 2 brief periods of mild fetal heart rate deceleration. Upon delivery, there was no indication of an acute ischemic event with normal Apgar scores of 9 after 1 minute and 9 after 5 minutes. There is documentation from a consulting geneticist that mom described possible prenatal seizure- like events, although a clear description was not given. The patient certainly had an abnormal immature EEG and seizure activity that continued for a few weeks. MRI findings have not been consistent with a profound ischemic event, in fact been completely normal. At this time, it is more likely that Owen has delays in his gross and fine motor skills as well as delayed cognitive development due to a congenital disorder that seems non-progressive in nature. He seems to be receiving excellent care provided to him by his parents and caretakers. At this time, it is difficult to measure Owen’s global cognition but based on acquired skills he functions at a 7-8 month level at the age of 19 months. This would be considered a developmental quotient of 40-45. His life expectancy is not felt to be limited if he shows ongoing developmental progress. He is likely to need lifelong care. I therefore am not recommending Owen to be included into the NICA program. 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 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. Sigurdardottir’s opinion that although Owen has both a substantial mental and physical impairment, it is more likely that his neurological impairments are due to a congenital disorder and not due to either mechanical injury or oxygen deprivation during labor, delivery or the immediate post-delivery period. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue is whether Maritza Rios, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Petitioners, Hilda Rios and Jaime Rios, are the parents and natural guardians of Maritza Rios, a minor. Maritza was born a live infant on October 10, 2005, at Winter Haven Hospital, Inc., d/b/a Regency Medical Center, a licensed Florida hospital located in Winter Haven, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Maritza's birth by Vincent W. Gatto, 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. "Notice pursuant to § 766.316, Fla. Stat., was properly given or excused, and is not an issue in this case." Maritza suffered an injury to the brain, caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered her permanently and substantially physically impaired. The only remaining issue is whether such injury also rendered Maritza permanently and substantially mentally impaired. Findings related to Maritza's injury and her impairment At NICA's request, Donald Willis, M.D., an obstetrician/gynecologist, reviewed the medical records related to Maritza's birth and newborn course, and concluded that Maritza suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, and the immediately postdelivery period. Dr. Willis summarized the basis for his conclusion, as follows: I have reviewed the medical records for the above individual. The mother, Hilda Rios, was a 29 year old G4 P2103 with her first baby born by Cesarean section and then two vaginal births. Prenatal care was uncomplicated. She presented at 38 weeks with spontaneous rupture of the membranes. Vaginal birth after Cesarean section was planned. The fetal heart rate pattern had a normal baseline heart rate and was reactive on admission [to Winter Haven Hospital]. Some occasional variable decelerations were present since early in labor. About 45 minutes before delivery the patient had moderate vaginal bleeding and severe variable decelerations that continued until delivery. Cesarean section was done for the abnormal FHR pattern. A uterine rupture was documented at surgery. The fetal head was in the maternal abdomen and the placenta was completely separated from the uterus. No cord blood could be obtained due to the abruption. Birth weight was 3,329 grams or 7 lbs 5 ozs. The newborn was floppy, depressed and had no respiratory effort. [Apgar scores were noted as 1, 5, and 7, at one, five, and ten minutes respectively.] Bag and mask ventilation was done until the heart rate was >100 bpm. There was still no respiratory effort and intubation was required. The baby was taken to the NICU intubated and with depressed muscle tone. Initially, the baby did well, but shortly after birth, an attempt to take the baby off the ventilator failed. The baby became acidotic and hypoxic. Seizure activity was suspected based on facial grimacing. EEG was normal. Re-intubation was required. The baby remained on the ventilator for six days. Ultrasound of the head on the day after birth was normal. MRI . . . [showed abnormal signal within the thalami and basal ganglia] suspicious of hypoxic insult. A follow up MRI at 10 months of age was normal. Genetic evaluation was done and was normal. * * * In Summary, labor was complicated by a uterine rupture due to a prior Cesarean section. The baby was expelled into the maternal abdominal cavity and the placenta separated from the uterus. This event resulted in oxygen deprivation to the baby during labor, delivery and into the immediate post delivery period with resulting brain injury. I am not able to comment as to the extent of the brain injury. (Joint Exhibit 7). To address the nature and significance of Maritza's injury, the parties also offered the report and deposition testimony of Raymond Fernandez, M.D., a pediatric neurologist who, at NICA's request, evaluated Maritza on November 12, 2008, when she was a 3-year 1-month old infant. (Joint Exhibits 6 and 10). Based on his evaluation, review of the medical records, and the history he obtained from Maritza's parents, Dr. Fernandez, like Dr. Willis, was of the opinion that Maritza suffered a brain injury (within the thalami and basal ganglia) due to oxygen deprivation during labor and delivery, secondary to uterine rupture. As for the significance of her injury, Dr. Fernandez was of the opinion that Maritza's brain injury rendered her permanently and substantially physically impaired, but not permanently and substantially mentally impaired. Pertinent to Maritza's impairments, Dr. Fernandez documented the results of his evaluation, and Maritza's medical history following her discharge from Winter Haven Hospital on October 23, 2005, in his report, as follows: An independent medical examination was performed on 3-year 1-month-old Maritza Rios on November 12, 2008, at the request of Ms. Kathe Alexander, Florida Birth-Related Neurological Injury Compensation Association. Maritza was accompanied by her parents, Mr. and Mrs. Rios. * * * Maritza was referred to a pediatric neurologist on August 1, 2006, age 10 months, because of motor delay. She was not sitting or crawling. She had strabismus and was referred for physical therapy and occupational therapy. Brain MRI on August 21, 2006, reportedly was normal. Also normal were amino acids, organic acids, chromosomes, acylcarnitine profile, and testing for Angelman syndrome was negative. The next visit to pediatric neurology was on September 26, 2006, age 11 months. She was unable to sit, had mild tightness of heel cords, stood with support on her tiptoes, rolled over and said mama and papa. Plantar responses were extensor. On December 19, 2006, age 14 months, personal-social development was on target, fine motor development was at the 10 to 11 month age, language 14 months, and gross motor development 7 months. It was stated that lactate and ammonia were elevated. Muscle biopsy showed congenital fiber type disproportion but no details were given and nonspecific Z-band streaming on electron microscopy. [On March 15, 2007, at] 17 months of age, [a Speech-Language and Oral Motor Evaluation noted] auditory comprehension was at the 14- month level, and expressive communication was at the 9-month level. [The evaluation characterized Maritza's receptive language skills as within normal limits [WNL] and her expressive language skills as mildly to moderately delayed. Speech therapy, at 30 minutes twice weekly for 6 months was recommended.3] At 1 year and 11 months of age, gross and fine motor development was said to be at the 12-month level. Mr. and Mrs. Rios stated that Maritza was generally healthy. They have not observed seizures. They feel that she understands what is said to her at an age-appropriate level and that she interacts well with her sisters. Speech, while initially delayed, has improved significantly over the past 2 to 3 months. She now speaks numerous single words, phrases and sentences, mainly in Spanish. She sits independently but with a rounded back and with her head often deviated to 1 side or the other and sometimes flexed onto her chest. Head control is improving. She ambulates by bouncing on her knees. She pulls to stand, takes 2 or 3 independent steps and then falls if not supported. She began doing this about 2 months ago. Maritza has been enrolled in a physical therapy program and will begin an early learning program in public school in January of 2009. PHYSICAL EXAMINATION: Weight approximately 32 pounds. Pulse rate 92. Respiratory rate 20. Head circumference 48.5 cm (just below the 50th percentile). Maritza was alert and attentive. She was socially engaging. She smiled responsively and extended her hand to me when I greeted her. She told me her first name and age when asked. She told me her sisters' names. She also said in Spanish that "I don't want to walk because I cannot." Speech at times was indistinct [dysarthric4] but I was usually able to understand her. She identified 2 colors correctly, counted to 3 correctly, then skipped 4 and then counted from 5 to 8. She sang the alphabet song, although not completely. She pointed to most body parts correctly. She counted my fingers up to 3 correctly, then again skipped 4 and resumed counting at 5. Maritza was visually attentive and maintained good eye contact. Pupils were equal and reactive to light. Eyes were straight and moved fully. There was no ptosis. Face was symmetric. Hearing was grossly normal. Palate elevated symmetrically. Tongue midline. She swallowed well. There was no drooling. Muscle tone was reduced axially and in her limbs. She sat independently but with a rounded back, and her head was either flexed forward or deviated to either side. She pulled to stand with difficulty and took 2 unsteady steps, and then would have fallen if not supported. There was truncal instability. There was no obvious weakness of extremities in that she easily elevated her arms above her head and elevated her legs when on her mother's lap. Also, she supported her weight when standing but was unsteady, and I believe this is what would have caused her to fall rather than weakness of her legs. She reached with either hand with tremor and with some writhing movements of her arms distally. Deep tendon reflexes were 1+ in the arms, knees and ankles. Plantar responses were probably flexor. ENT exam was normal as were heart, lungs, and abdomen. There were no dysmorphic features or significant skin abnormalities. Maritza stacked three 1-inch cubes, although with difficulty because of her motor incoordination. She attempted to draw circles but had difficulty because of tremor. She handed objects to either parent correctly when asked to do so, and she also placed objects on the examining table next to her on request so that she understood these verbal requests. She correctly named pictures of animals and correctly described a picture of ducks and stated in Spanish that they were walking. IMPRESSION: Motor impairment that is substantial and consistent with deep brain injury (with basal ganglia) due to oxygen deprivation during labor and delivery, secondary to uterine rupture. However, I do not find evidence for substantial cognitive impairment at this time. Please note that Maritza might eventually prove to have learning difficulty, but this cannot be predicted based on current findings. She is improving, and this trend should continue. (Emphasis added). (Joint Exhibit 6). In his deposition testimony, Dr. Fernandez contrasted the history he obtained and the results of his examination of Maritza, with what he would expect to find if she were substantially mentally impaired, as follows: Well, a child with substantial cognitive mental impairment is a child who is not interactive, who is not attentive, who doesn't comprehend or understand spoken language, receptive language. A child that cannot carry out verbal requests because they don't understand what they are being asked to do. A child who might not speak at all. A child who doesn't understand, for example, prepositional commands to give something to that person, to give something to the mother, to the father, put something on the table. A child that cannot understand that. A child who has not learned and remembered colors at the age of three years. That's a three-year-old function. A child who cannot remember the shapes of symbols like circles. That's a three-year-old function, to know what a circle looks like and to draw it, or try to draw it in Maritza's case. She had trouble because of the motor problem that she has, but she made a definite attempt to make that circle. There are the things that a child with substantial mental cognitive impairment are not going to be able to do . . . . (Joint Exhibit 10, p. 116). In contrast, Dr. Fernandez was of the opinion that, by history and on evaluation, Maritza interacted at an age appropriate level, by conversing, understanding and following verbal requests; demonstrated expressive and receptive language skills at an age appropriate level; and had the ability to learn and be educated. In response to the observations and opinions of Dr. Fernandez, Intervenors offered the deposition testimony of Mr. and Mrs. Rios, as well as the deposition testimony of Elias Chalhub, M.D., a pediatric neurologist, to support a conclusion that Maritza was permanently and substantially mentally impaired. (Joint Exhibits 8, 9, and 11). However, such testimony was not compelling. From the testimony of Mr. and Mrs. Rios one learns that Maritza does not know her numbers, or can count only to 2; Maritza does not know the alphabet; Maritza knows only 3-5 words, but says more than 10; that six months earlier Maritza spoke only 1 word; Maritza does not speak in sentences; Maritza cannot converse; Maritza does not understand her parents; Maritza does not understand the television shows she watches (but, she watches in English, and speaks only Spanish); and Maritza does not understand stories her parents may read to her (but, they rarely read to her). However, Mr. and Mrs. Rios' testimony conflicts dramatically with the history they provided Dr. Fernandez, as well as Dr. Fernandez's personal and professional observations, and no credible explanation was offered to explain such discrepancy. From Dr. Chalhub we learn that in his opinion Maritza is permanently and substantially mentally impaired. However, Dr. Chalhub did not examine Maritza, and in reaching his opinion, Dr. Chalhub accepted, as true, the testimony of Mr. and Mrs. Rios regarding Maritza's presentation, and rejected or ignored the observations of Dr. Fernandez, without a persuasive explanation. Notably, the observations and opinions of Dr. Fernandez were logical, consistent with the record, and not shown to lack credibility. In contrast, the testimony of Mr. and Mrs. Rios, as well as Dr. Chalhub, was not compelling. Accordingly, it is resolved that, more likely than not, Maritza is not permanently and substantially mentally impaired.
