The Issue At issue is whether Maxwell Hubmann, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts related to compensability Petitioners, Roger and Sara Hubmann, are the parents of Maxwell Hubmann, a minor. Maxwell was born a live infant on March 25, 2008, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Maxwell's birth by Brian Sontag, 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 . . . caused by . . . 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 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Maxwell suffered a traumatic brain injury during the delivery process. (Transcript, pp. 9 and 10; Respondent's Exhibits 1-4). What remains to resolve is whether such injury rendered Maxwell permanently and substantially mentally and physically impaired. To address the nature and significance of Maxwell's injury, NICA offered the affidavit and report of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, who evaluated Maxwell on January 28, 2009. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that while Maxwell suffered a traumatic brain injury during delivery, his mental function was normal and his motor deficit was quite mild. In so concluding, Dr. Duchowny documented the results of his examination, as well as his conclusions, as follows: PHYSICAL EXAMINATION today reveals an alert, well-developed and cooperative, well- nourished 10-month-old infant. Maxwell weighs 24 pounds and is 30 inches in height. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blond and of normal texture. The spine is straight without dysraphism. The head circumference measures 46.1 centimeters which is within standard percentiles. The anterior and posterior fontanels are patent and flat. There are no cranial or facial anomalies or asymmetries. The tongue and palate are moist. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Maxwell's NEUROLOGICAL EXAMINATION reveals him to be alert, cooperative and fully attentive. He is quite sociable and maintains an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. Funduscopic examination revealed no abnormal retinal findings. There are no significant facial asymmetries of movement. The uvula is midline and the pharyngeal folds are symmetric. Tongue movements are full in all planes. Motor examination reveals an asymmetry of movement with relatively greater movement on the right side. The left upper extremity has mild stiffness but has full range of motor. There is fine motor dexterity of both hands but Maxwell demonstrates a right arm preference and will preferentially reach for an object with the right hand. When an object is moved to the left, he will ultimately offer the left and readily transfers between hands. He has symmetrical movement of both legs. He has well-developed traction and grasp responses and good head control for age. The deep tendon reflexes are slightly exaggerated being 3+ at the knees and biceps. There are no pathologic reflexes. Plantar responses are downgoing. He can stand and bear weight with good axial tone and support does not take steps independently. He has good sitting balance as well. 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. In SUMMARY, Maxwell's neurological examination reveals that his motor developmental milestones are on time despite a very mild asymmetry of movement and muscle tone in the upper extremities. He is preferentially a right hander due to the motoric asymmetry. In other respects, Maxwell's neurologic status is quite good and his overall level of mental functioning appears to be on target at age level. I have had an opportunity to fully review the medical records which were mailed on January 12, 2009. The records indicate that Maxwell's neurologic problems at birth were the result of mechanical injury acquired during the delivery process. However, he has made remarkable progress and his mental function is normal and his motor deficit is quite mild . . . . (Respondent's Exhibits 3 and 4). Here, the opinions of Dr. Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that Maxwell's brain injury did not render him permanently and substantially mentally and physically impaired. See 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 La’Jordan V. Tripp was born on May 22, 2013, at Sacred Heart Hospital in Pensacola, Florida. La’Jordan weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review La’Jordan’s medical records. In a medical report dated April 18, 2014, Dr. Willis made the following findings and expressed the following opinion: In summary, repeat Cesarean section delivery was complicated by dense adhesions and a very difficult extraction of the baby. It took nineteen minutes to deliver the baby. Normal incision to delivery time would be five minutes or less. There were failed attempts to delivery using forceps and vacuum extractor. After a difficult delivery, the baby was depressed with cord blood pH of only 6.8. The newborn hospital course was complicated by seizures and thrombocytopenia. EEG was abnormal and MRI showed evidence of a subdural hemorrhage. * * * The mother was not in labor. However, the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process and continued into the immediate resuscitation period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis’ opinion that the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process continuing into the immediate resuscitation period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate La’Jordan. Dr. Duchowny reviewed La’Jordan’s medical records and performed an independent medical examination on him on May 7, 2014. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY La’Jordan’s neurologic examination is significant only for mild generalized hypotonia with borderline delay of motor milestones and some oromotor incoordination. In other respects, his neurologic examination is normal and he is progressing satisfactorily from a developmental standpoint. Certainly, there are no specific focal or lateralizing findings noted today. A review of the medical records confirms the mother’s report of La’Jordan being delivered by repeat cesarean section. The prenatal history was positive for chronic hypertension and morbid obesity and delivery was difficult due to uterine adhesions. Ultimately, 19 minutes were required to deliver La’Jordan and forceps and vacuum provided assistance. Placental pathology was within normal limits. La’Jordan’s birth weight was recorded as 8 pounds 10 ounces and his Apgar scores were 1, 4 and 6 at 1, 5 and 10 minutes. His cord blood gases were consistent with a metabolic acidosis as his arterial pH was 6.8 and venous pH 6.9. He was intubated only briefly in the delivery room for apnea and was extubated to room air at 30 minutes of life. A focal seizure led to a workup for possible sepsis and he was transiently treated with ampicillin, gentamycin and acyclovir until CFS cultures were negative at 48 hours. MRI scan of the brain performed on May 25, 2013 revealed a slight amount of hemorrhage over the tentorial region and interhemispheric fissure which were interpreted as subdural hematoma. I would question whether this was subarachnoid rather than subdural blood but I have not had an opportunity to review the films. An EEG performed one day later on May 26, 2013 demonstrated bilateral independent temporal abnormalities. In summary, the findings from today’s evaluation and medical review do not provide support for believing that La’Jordan has either a substantial mental or physical impairment. I therefore so not believe that he should be considered for compensation within the NICA Program. Dr. Duchowny re-evaluated La’Jordan on September 16, 2015, and wrote a second report regarding that evaluation. In SUMMARY, La’Jordan’s neurologic examination reveals a significant expressive language delay and a less significant delay in receptive language skills. He has poor socialization, a short attention span and an impulsive behavioral style. These findings are consistent with a diagnosis of autism spectrum disorder. He additionally has a comorbid seizure disorder and hypotonia with developmental motor delay. These findings are likely due to prenatal antecedents and are not due to oxygen deprivation or mechanical injury in the course of labor or delivery. I believe that La’Jordan will continue to progress and I discussed the diagnosis of autism spectrum with the family and encouraged them to seek additional therapeutic input. I again do not recommend that La’Jordan be accepted for compensation within the NICA Program, and am happy to answer additional questions. Dr. Duchowny’s opinion that La’Jordan’s injury is inconsistent with an injury to his brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is somewhat at odds with Dr. Willis’ opinion regarding the same issue. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that La’Jordan does not have a substantial mental or physical impairment is credited. 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. Duchowny that La’Jordan does not have a substantial mental and physical impairment. While La’Jordan has some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); 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."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
The Issue Whether Daniel Espinoza has suffered an injury for which he and his mother, Maria L. Espinoza, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as Ms. Espinoza has alleged in her claim for compensation filed on behalf of Daniel?
Findings Of Fact Based upon the evidence adduced at the July 14, 1994, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Daniel Espinoza is the natural son of Petitioner. He was born on January 6, 1991, at Jackson Memorial Hospital (hereinafter referred to as "Jackson") in Dade County, Florida. Daniel was the product of a full term pregnancy. His birth weight was in excess of 2500 grams. Daniel was delivered by Erin Colleen Dawson, M.D. At the time of Daniel's birth, Dr. Dawson was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. The delivery was uneventful. Daniel was a "vigorous" baby at birth. He had a "good" Apgar score of 9 at one, five, and ten minutes after birth. There was no resuscitation required in the immediate postdelivery period. Approximately five hours after the initial evaluation, Daniel appeared to be "grunting" and suffering from "cyanosis." As a result, he was transferred to Jackson's neonatal intensive care unit, where he had a seizure and experienced respiratory distress. Daniel's C.S.F. (cerebrospinal fluid) was bloody and had a white blood cell count of 19000. An initial diagnosis of meningitis was made. On January 7, 1991, an EEG (electroencephalogram) was done. It revealed "no epileptiform phenomena." A CT (computerized tomography) scan of Daniel's brain was performed on January 8, 1991. The report of the scan read as follows: HISTORY- TWO DAY OLD WITH SEPSIS. 5 MM AXIAL SECTIONS WERE OBTAINED THROUGH THE BRAIN WITHOUT CONTRAST. THERE IS A SMALL LUCENT DEFECT IN THE LEFT OCCIPITAL BONE SEEN ON IMAGE #5. ALTHOUGH NO SOFT TISSUE SWELLING IS SEEN, CANNOT DEFINITELY EXCLUDE THIS BEING A LINEAR NONDEPRESSED FRACTURE VERSUS OTHER ETIOLOGY SUCH AS A VASCULAR GROOVE. WE SUGGEST CORRELATION WITH THE PLAIN FILM. THERE IS A HUGE AMOUNT OF BLOOD IN THE RIGHT POSTERIOR FOSSA EXTENDING ACROSS THE MIDLINE AND INSINUATING ON THE RIGHT TENTORIAL INCISURA SUPRATENTORIALLY. BLOOD IS ALSO SEEN ALONG THE POSTERIOR INTERHEMISPHERIC FISSURE DIFFUSELY IN THE EXTRA-AXIAL SPACE, AND A SMALL AMOUNT OF BLOOD IN THE OCCIPITAL HORNS OF THE LATERAL VENTRICLES. WITH SUCH A TREMENDOUS AMOUNT OF BLOOD PRESENT IN THE POSTERIOR FOSSA, IT IS DIFFICULT TO SAY HOW MUCH IS PARENCHYMAL VERSUS EXTRA-AXIAL. THERE IS MASS EFFECT UPON THE MID BRAIN PONS AND MEDULLA AND ON THE FOURTH VENTRICLE CAUSING OBSTRUCTING HYDROCEPHALUS. IMPRESSION LARGE ACUTE INTRACRANIAL HEMORRHAGE, AS DESCRIBED ABOVE, WITH THE EPICENTER BEING IN THE RIGHT POSTERIOR FOSSA. THE DIFFERENTIAL DIAGNOSIS INCLUDES NEOPLASM, TRAUMA, RUPTURED ANEURYSM OR ARTERIOVENOUS MALFORMATION, COAGULOPATHY, ETC. CONTRAST STUDY OR MRI MAY BE OF HELP FOR FURTHER EVALUATION TO TRY TO DETERMINE THE UNDERLYING ETIOLOGY. On January 9, 1991, Daniel underwent an echoencephalogram, which, according to the report of the study, indicated the following: ROUTINE ECHOENCEPHALOGRAM REVEALED DILATION OF THE LATERAL AND THIRD VENTRICLES. THERE IS A BILATERAL LUMPY CHOROID PLEXUS NOTED. ADDITIONAL TRANSTEMPORAL VIEWS REVEAL AN ECHOGENIC AREA SEEN IN THE INFRATENTORIAL REGION, WITH INCREASE IN THE ECHOGENICITY OF THE BASAL CISTERNS. THE FINDINGS ARE SIMILAR TO THOSE SEEN ON PREVIOUS CT SCAN, WHICH SHOWED EVIDENCE OF A CEREBRAL HEMORRHAGE WITH SUBARACHNOID BLEED. THE NORMAL STRUCTURES OF THE POSTERIOR FOSSA ARE ILL-DEFINED. IMPRESSION: MODERATE HYDROCEPHALIC CHANGES OF THE LATERAL AND THIRD VENTRICLES. SUBARACHNOID HEMORRHAGE WITH A POSTERIOR FOSSA HEMORRHAGE, AS DESCRIBED IN A PREVIOUS CT SCAN OF THE BRAIN. Another CT brain scan was performed on January 23, 1994, the report of which stated the following: THE PATIENT IS A TWO WEEK OLD MALE WITH A HISTORY OF INTRACRANIAL HEMORRHAGE. AXIAL IMAGES WERE OBTAINED THROUGH THE BRAIN AT 5MM INTERVALS FOLLOWING INTRAVENOUS ADMINISTRATION OF CONTRAST. COMPARED TO THE PRIOR STUDY OF 1-8-91, THERE HAS BEEN SUBSTANTIAL RESORPTION OF BLOOD IN THE REGION OF THE SUBDURAL, SUBARACHNOID AND INTRAVENTRICULAR HEMORRHAGE. THERE ALSO HAS BEEN MARKED DECREASE IN THE VENTRICULAR SIZE. THERE IS LESS ASSOCIATED MASS EFFECT, ESPECIALLY IN THE POSTERIOR FOSSA WITH PERSISTENT SUBDURAL HEMORRHAGE IN THE RIGHT SIDE OF THE POSTERIOR FOSSA DISPLACING THE CEREBELLUM ANTERIORLY AND TO THE LEFT. THE FOURTH VENTRICLE IS NOW VISUALIZED, HOWEVER. NO NEW AREAS OF HEMORRHAGE ARE SEEN. THERE ARE NO BONY ABNORMALITIES. THE MAXILLARY AND ETHMOID SINUSES AND MASTOID AIR CELLS ARE CLEAR. IMPRESSION SIGNIFICANT RESORPTION OF SUBDURAL, SUBARACHNOID WITH INTRAVENTRICULAR HEMORRHAGE SINCE THE PRIOR STUDY OF 1-8-91 WITH LESS MASS EFFECT, ESPECIALLY UPON THE CEREBELLUM AND BRAIN STEM. MARKED DECREASE IN VENTRICULAR SIZE HAS ALSO OCCURRED. On January 25, 1991, Daniel underwent a second echoencephalogram, the report of which read as follows: FOLLOW-UP BRAIN HEMORRHAGE. COMPARISON IS MADE TO PREVIOUS STUDY FROM 1/8/91. THERE HAS BEEN MARKED INTERVAL RESOLUTION OF THE PREVIOUSLY DEFINED RIGHT POSTERIOR FOSSA HEMORRHAGE. IN ADDITION, THE VENTRICULAR SIZE HAS DECREASED SIGNIFICANTLY SINCE THE PREVIOUS EXAM. THERE CONTINUES TO BE SLIGHT INCREASED ECHOGENICITY WITHIN THE SYLVIAN FISSURES BILATERALLY, WHICH MAY REPRESENT SOME RESIDUAL SUBARACHNOID HEMORRHAGE. NO EVIDENCE OF NEW OR ACUTE HEMORRHAGE IS IDENTIFIED. IMPRESSION: THERE HAS BEEN SIGNIFICANT INTERVAL IMPROVEMENT IN THE DEGREE OF VENTRICULAR DILATION AND THE PREVIOUSLY DEFINED HEMORRHAGE, WHEN COMPARED TO THE STUDY OF 1/8/91. Daniel was discharged from Jackson on January 31, 1991. At present, in terms of meeting expected language milestones, Daniel is mildly delayed, primarily in the area of expressive language. The delay is developmental in nature and Daniel will likely improve in this area over time. Otherwise, his mental functioning is relatively well preserved. Physically, Daniel is only very mildly impaired. He has a slight decrease in muscle tone and some incoordination, but he does not suffer from spasticity or contracture and he is able to move both of his arms well and to walk without losing his balance. He is even able to run, although he has a tendency to lean to the right and appear as if he is about to fall when he does so. In short, Daniel suffers from no permanent and substantial mental or physical impairment. 2/
Findings Of Fact Wyatt Cooper was born on July 21, 2015, at Highlands Regional Medical Center in Sebring, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Wyatt's medical records. In a medical report dated December 15, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor at 37 weeks was complicated by a non-reassuring FHR pattern during labor, followed by a shoulder dystocia at delivery. The newborn was depressed with Apgar scores 1/3/6/6/7. Blood cultures were positive for E. coli. Respiratory distress at birth progressively worsened and required ECMO. The newborn hospital course was complicated by multisystem organ failures. MRI was consistent with encephalomalacia. The cord blood pH of 7.25 seems somewhat inconsistent with the FHR pattern prior to delivery, a shoulder dystocia at birth and low Apgar scores of 1/3. The baby had E. coli sepsis, presumably prior to birth. Sepsis could account for the fetal tachycardia and decreased FHR variability during labor. Clinically, it would be reasonable that oxygen deprivation occurred during labor and delivery and continued into the post delivery period. If the cord pH is correct, it would suggest the oxygen deprivation occurred more likely during the immediate post delivery period. In either case, oxygen deprivation occurred during the post delivery period and the oxygen deprivation resulted in brain injury. There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain, primarily during the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. E. coli sepsis would likely be a contributing factor for the oxygen deprivation and brain injury. Dr. Willis' opinion that there was an obstetrical event that resulted in loss of oxygen to the baby's brain primarily during the immediate post-delivery period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Wyatt. Dr. Duchowny reviewed Wyatt's medical records and performed an independent medical examination on him on March 8, 2017. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Wyatt's neurological examination reveals evidence of generalized hypotonia, borderline expressive language delay and evidence of high activity level and short attention span. There are no focal or lateralizing findings. I have not yet had the opportunity to review medical records and will issue a final report once the review process is complete. Following his review of medical records, Dr. Duchowny wrote an Addendum dated March 14, 2017, which amended the above- referenced independent medical evaluation report. The addendum reads in pertinent part: Wyatt remained in the newborn nursery for a total of 65 days. His course was obviously extremely complicated with many risk factors for overall development. However, Wyatt does not have a substantial motor impairment, and his neurological deficits were likely acquired after birth. I am therefore not recommending consideration for inclusion in the NICA program. Dr. Duchowny's opinion that Wyatt does not have a substantial motor impairment is credited. In order for a birth-related injury to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. 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. Duchowny that Wyatt does not have a substantial motor impairment. While Wyatt has neurological deficits, these deficits do not render him permanently and substantially physically impaired.
Findings Of Fact Daniel Flint was born on May 3, 2014, at Bayfront Health Spring Hill in Spring Hill, Florida. Daniel weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Daniel's medical records. In a medical report dated June 2, 2015, Dr. Willis made the following findings and expressed the following opinion: In summary, fetal bradycardia developed during labor and required emergency Cesarean delivery. The baby was severely depressed at birth with Apgar scores of 0 at one and five minutes. A heart rate was not present until after 10 minutes of vigorous resuscitation. The initial blood gas was consistent with acidosis. The base was -22. Seizures occurred within the first hour of life. The baby was diagnosed with HIE and managed with whole body cooling. The baby was found to have a single mutation for the Prothrombin II mutation. I do not believe this was a factor in the oxygen deprivation at birth. There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. Seizure activity shortly after birth would be consistent with brain injury as a result of the oxygen deprivation. I am unable to comment about the severity of the brain injury. Dr. Willis' opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post-delivery period, and that seizure activity shortly after birth would be consistent with brain injury as a result of oxygen deprivation is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Daniel. Dr. Duchowny reviewed Daniel's medical records and performed an independent medical examination on him on May 13, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows: In SUMMARY Daniel's neurological examination reveals very mild plantar-grade foot positioning without corroborating evidence of increased muscle tone. The elevated (3+) knee jerks are consistent with an extremely mild spastic diparesis. He additionally evidences borderline microcephaly. I was surprised by this finding as his head appeared normal to inspection; I re-measured the head circumference several times to confirm. Daniel's motor impairment is judged to be mild and I did not find evidence of many [sic] mental impairment. A review of medical records sent on April 16th reveals that following Daniel's birth at Bayfront Health at Springhill Hospital at 38 4/7 weeks gestation he was transferred to All Children's Hospital. Because of concern over low Apgar scores of 0, 0, 2, 4 and 5 at 1, 5, 10, 15 and 20 minutes, lethargy and tremors, he was placed in a hypothermic protpocol at 1 hour of life which was formally implemented upon arrival at All Children's Hospital. Daniel underwent total body cooling for 3 days. He developed seizures within 35 minutes of delivery and was treated with phenobarbital. Dopamine and hydrocortisone were administered. His nursery course was complicated by MRSA colonization which stabilized. He was found to be heterozygous with a prothrombin gene mutation. An MRI scan of the brain obtained on May 12 revealed a questionable area of thrombosis but a repeat MRI scan on May 22 was significant only for enlarged extraaxial spaces. In summary, Daniel has done remarkably well and now has only a very mild motor impairment affecting his gait and to a lesser degree his oroalimentary coordination. His head growth is borderline. I believe the hypothermia protocol played a role in improving his long- term prognosis. Daniel does not have either a substantial mental or motor impairment and I am not recommending him for consideration within the NICA Program. Dr. Duchowny was deposed on January 15, 2015, wherein he testified in pertinent part as follows: Q. Okay. All right. And these records discuss and describe certain issues, and I know you said you read the mom's deposition. She raised some issues about the child's coordination running or about some of the swallowing issues. Is it fair to say that any issue that's been raised, either by Mom in her deposition or by any of the health care providers in the records that you reviewed or any issues that you noted in your report, are all related to this developmentally based disorder that was established in utero? A. That's what I believe, yes. Q. And is that your opinion within a reasonable degree of medical probability? A. It is. * * * Q. Doctor, are you familiar with the term or definition of birth-related neurological injury as it's used with Chapter 766 of the Florida Statutes? A. I believe so, yes. Q. Okay. So I want to ask you then: Do you have an opinion whether Daniel is permanently and substantially mentally and physically impaired? MS. DAWSON: Form THE WITNESS: I do BY MR. GRACE: Q. What's that opinion Doctor? A. I do not believe that he has a substantial mental or physical impairment. Q. And just in summary fashion – I'm not asking for you to re-testify about all your prior opinions. But in summary fashion, tell us the basis for that opinion and where you gathered your support. A. It's because I believe that Daniel's motor dysfunction is mild and primarily is associated with incoordination which will improve over time. And I also believe that his delayed expressive language development will also improve over time. So they're mild now and will continue to improve. Therefore, neither domain represents a substantial impairment. Q. Is that opinion given within a reasonable degree of medical probability? A. Yes. Q. Doctor, in response to Mr. Valenzuela's question, you briefly touched on MRI scans that were done. Did you review the actual films, or did you rely on the reports? A. I can't recall. I have not reviewed them recently. If I had to guess, I would say that I relied on the reports at that time, but I honestly can't recall. Q. Okay. There were two scans done. And with regard to those scans, you indicated in your report on page 5 there was a questionable area of thrombosis? A. Yes, that was on the first one I believe. Q. All right, what is thrombosis? A. Blood clot. Q. And are you able to tell us what you attribute that clot to? A. I don't know. Q. Then there was a repeat MRI scan done on May 22nd, correct? A. Yes sir. Q. All right. And what were the findings on that? A. That showed no abnormalities in the brain, no evidence of thrombosis, and an extra-axial collection of fluid, meaning a collection of fluid outside the brain, not within the brain substance itself. Q. With regard to your opinion that Daniel has not suffered a birth-related neurological injury, did you rely on these MRI's to formulate that opinion? A. Yes, that was one component. Q. Okay. And how did you rely on these? What's the significance? A. Well, I don't think it's -- that you can rely on any one aspect. What I did was factor the findings on the MRI with the history and with my findings on physical examination as well as the history of Daniel's development. Putting all of that information together, in my opinion, yields a consistent pattern and diagnosis of developmental delay. I thought Daniel's examination revealed developmental findings, as I've stated previously. And the fact that his follow-up MRI showed no evidence of a structural brain injury, in my opinion, supported that diagnosis. Dr. Willis is of the opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the post- delivery period, and that seizure activity shortly after birth is consistent with brain injury as the result of oxygen deprivation. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny's opinion that Daniel does not have a substantial mental or physical impairment is credited. 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. Duchowny that Daniel does not have a substantial mental and physical impairment. While Daniel has some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.
The Issue Whether Faith Lapp, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Linda J. Davidson Lapp is the natural mother and guardian of Faith Lapp, a minor. Faith was born a live infant on January 27, 1998, at Arnold Palmer Hospital for Children & Women (Arnold Palmer Hospital), a division of Orlando Regional Healthcare System, Inc., a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Faith's birth were Penny A. Danna, M.D., and Steven Carlan, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Faith's birth At or about 1:25 a.m., January 27, 1998, Mrs. Lapp (with an estimated date of delivery of January 22, 1998, and the fetus at 40+ weeks gestation) presented to Arnold Palmer Hospital, in labor. At the time, Mrs. Lapp's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement complete, and the fetus at -1 station. Contractions were noted as mild, at a frequency of 2-3 minutes, with a duration of 40 seconds, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130 beat per minute range. From 1:25 a.m. until 5:00 a.m., when her membranes spontaneously ruptured, Mrs. Lapp's labor progress was steady, and fetal monitoring continued to reveal a reassuring fetal heart rate. Thereafter, to 7:05 a.m., when vaginal examination revealed Mrs. Lapp complete, monitoring continued to reveal a reassuring fetal heart rate, with a baseline in the 150 beat per minute range, and variable decelerations, with contractions, and a good return to baseline. At 7:20 a.m., Mrs. Lapp was noted as pushing, with contractions, and variable decelerations continued without significant change until approximately 8:40 a.m., one hour prior to delivery, when fetal heart rate decelerations became persistent. Thereafter, at 9:25 a.m., the baby was noted to crown; at 9:34 a.m., the baby was noted as bradycardic with a fetal heart rate in the 70 beat per minute range; and at 9:36 a.m., the baby's head was noted as delivered, with the fetal heart rate continuing in the 70 beat per minute range. Delivery was complicated by a shoulder dystocia, and at 9:38 a.m., the labor and delivery record reveals the baby was not yet delivered, and the fetal heart rate was persisting in the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith was delivered. At delivery, Faith was severely depressed (without respiratory effort, reflex, or muscle tone; a color consistent with central cyanosis; and a heart rate under 60 beats per minute), and required resuscitation (ambu bagging with 100 percent oxygen, cardiac compression for 20 seconds, and intubation). Apgar scores were recorded as 1 and 6, at one and five minutes, respectively,1 and cord pH was recorded at 7.28. Following delivery, Faith was transported to the neonatal intensive care unit (NICU), where she remained until January 31, 1998, when she was discharged to her parent's care. Faith's hospital course was summarized in her Clinical Resume (discharge summary), as follows: History . . . . Term newborn female, birth weight 4449 gm, born on 01/27/98 at APHCW. Mother is a 39- year-old gravida 2, para 1, 0 positive, maternal screens negative, uncomplicated gestation, 40+ weeks gestation, rupture of membranes 4 hr., 40 min. prior to delivery. Difficult extraction, vaginal delivery, epidural anesthesia, nuchal cord times one. During process of extraction, left fracture of the humerus. Baby cyanotic and apneic, heart rate 40-60, Ambu bagged with 100%, cardiac compressions given, intubated at one to 1-1/2 min. of life, with 3.5 cm ET tube, responded with 100% 02 by bagging, re- intubated due to air leak with 4.0 ET tube at 7-10 min. of age. Apgars 1 at one min., 6 at five min., cord pH 7.28, birth weight 4449 gm, temperature 98.8?, Accu-Chek 72, mean blood pressure low 30s. Hematocrit 49%. PHYSICAL EXAMINATION: Alert, molding of the head, bruising of the scalp. Pupils reactive to light. Nose and throat normal. Lungs coarse. No murmur. Abdomen soft. Liver 2 cm below right costal margin. Cord - 2 arteries, 1 vein. Female genitalia. Anus patent. Passing meconium. Spine normal. Left arm with swelling and tenderness at fracture site. Decreased tone and reflexes. Poor perfusion. IMPRESSION: Post mature, 41 weeks female Neonatal depression, post difficult delivery. Aspiration. Rule out sepsis. Hypovolemia. Left humerus fracture. PROBLEM LIST: Problem #1: Post mature, 41 weeks female. Problem #2: Neonatal depression. Infant required 100%, pressures of 23/3 and an IMV of 30; pH 7.4, pCO2 22, PO2 393, base excess -8.1. Weaned and extubated to room air by day one. No apnea nor bradycardia. Monitor discontinued. Problem #3: Rule out sepsis. Treated with ampicillin and gentamicin times 72 hr. Blood culture negative. Problem #4: Fracture of the left humerus. Orthopaedic consult obtained, infant was splinted, now is positioned with left upper extremity pinned across chest and is comfortable. For follow-up with Dr. Topoleski. Problem #5: Neurologic. A CT scan of the head shows some central subdural bleeding along tentorium and falx cerebri, small amount, slightly prominent extra-axial space left temporal region.[2] Problem #6: Miscellaneous. Passed ABR hearing screening exam. Annual follow-up is recommended. Infant screening was done 01/28/97. Problem #7: Fluids/electrolytes/nutrition. Feedings were begun on day 2, and advanced. Infant is tolerating ad lib feedings of maternal breast milk or Similac-20 with iron, and nippling well. Physical examination, 01/31/98: Four days of age. Weight 4555 gm, head circumference 33.25 cm. Pink. Anterior fontanelle soft. No murmur. Lungs clear. Abdomen soft and full. Neurologic appropriate. Left arm positioned as noted above. * * * FINAL DIAGNOSIS: Post term, 41 weeks female. Neonatal depression. Rule out sepsis. Left fractured humerus. Subdural bleeding. Follow-up CT scan on March 25, 1998, showed resolution of the subdural hemorrhage. Specifically, the CT scan was read, as follows: The ventricles are normal in size and configuration. There is no midline shift. The attenuation characteristics of the brain are within normal limits for the patient's age and state of maturity. No extra-axial fluid collections are identified. The hemorrhagic changes described on the study of 01/30 have cleared. IMPRESSION: CT appearance of brain within normal limits. Faith's subsequent development Following discharge from Arnold Palmer Hospital, Faith was followed for a number of evolving irregularities. Pertinent to this case, insight into the complexity of her presentation can be gleaned from some observations by a few of Faith's physicians: Michael Pollack, M.D., a pediatric neurologist; Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn, Jr., M.D., an ophthalmologist. Dr. Pollack initially evaluated Faith on March 30, 1998, and described his impressions, as follows: . . . Parents have observed that the patient does not follow although she appears to respond to light. She has been evaluated by Dr. Gold and Dr Richmond and apparently has retinal detachment . . . . A recent film of the patient's left arm apparently demonstrated that her humeral fracture is healing satisfactorily. * * * A recent CT scan of the head shows resolution of posterior fossa hemorrhage. In addition, the fluid collection over the left temporal region has largely disappeared but the left-sided subarachnoid space does remain larger than the right. Physical examination includes a weight of 14 pounds and a head circumference of 35.5 cm. The forehead appears underdeveloped and the head is small in relation to the face. Anterior fontanel is closed. There is ridging of coronal and sagittal sutures. Slight flattening of the right occiput is present and there is corresponding alopecia . . . . IMPRESSION: Perinatal craniocerebral trauma and probable hypoxic ischemic encephalopathy. Retinopathy by history. Evolving microcephaly versus craniosynostosis: Primary microcephaly (failure of the head to grow because of poor brain growth) appears more likely than craniosynostosis . . . . Dr. Pollack summarized his September 29, 1998, evaluation, as follows: Faith is an 8-month-old girl who was initially evaluated in my office 3/98 because of visual impairment and suspected seizures. Her diagnoses include perinatal craniocerebral trauma and a possible hypoxic ischemic encephalopathy. In addition, she had a congenital retinopathy. Her diagnoses at Bascom Palmer Institute were: (1) congenital bilateral retinal detachment and (2) variation of persistent hyperplastic primary vitreous or persistent fetal vasculature bilaterally. Her MRI scan of the head showed an abnormality of the rostrum of the corpus callosum which was thought to fall in the spectrum of septo- optic dysplasia. Her condition, therefore, appears to be due to a combination of congenital anomalies and perinatal factors . . . . In the past few months, the patient has undergone . . . [repair of metopic synostosis]. Although the shape of her head has improved, her head circumference has remained below the 5th percentile, supporting the view that primary microcephaly rather than craniosynostosis was responsible for the small head size in this patient. In addition, ptosis of the right upper lid developed postoperatively. * * * PHYSICAL EXAMINATION: Includes a length of 26.5 inches, weight 18-3/4 pounds, head circumference 38.5 cm. The head appears small in relation to the face. There is unilateral occipital flattening . . . . IMPRESSION: Severe nonprogressive encephalopathy due to perinatal factors as outlined above and a congenital anomaly of the central nervous system. There is severe visual impairment which is due to a retinal anomaly . . . . Her residual microcephaly suggests that deficient brain growth rather than craniosynostosis was responsible for her small head size . . . . Development is globally delayed. The combination of microcephaly, congenital CNS anomalies, visual impairment and global developmental delay in this patient suggests that she is likely to function in the trainable mentally handicapped range. Her motor attainment to date implies that she will walk independently. Following September 29, 1998, Faith was seen by Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001, during which there was no apparent change in Dr. Pollack's impression. Thereafter, the record suggests that following Faith's last visit with Dr. Pollock, her neurology issues were followed in Miami; however, there is no evidence of record regarding those evaluations, if any.3 Following discharge from Arnold Palmer Hospital, Faith was also seen by Dr. Trumble and had serial workups for craniosynostosis. That diagnosis was rejected July 9, 1998, when "a head CT with 3-D reconstruction . . . revealed all sutures to be open with the exception of her metopic suture, which was supposed to be closed at this age." Faith did, however, have "metopic synostosis with a small palpable ridge," which was repaired on July 29, 1998. Faith apparently did well post-operatively, with the exception of right eye ptosis. Of note, an uncontrasted CT scan was reviewed by Dr. Trumble in March 1999, which he noted: "identifies normal morphology without evidence of increased CSF spaces or definite atrophy." On April 20, 1998, Faith's ophthalmologic problems were evaluated by Dr. Flynn, professor of ophthalmology at Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn described his impressions as follows: . . . [Faith] was examined on 4/20/98 regarding her retinal detachments in both eyes. . . . [The patient] had a traumatic delivery that involved extensive facial, cranial and subconjunctival hemorrhages. The patient has brought with her multiple studies including X-rays, CT scans and other studies that have been reviewed and are present on the chart. The patient is being referred regarding the possibility of any surgical therapy for this patient with bilateral retinal detachments. The ocular examination showed no recordable visual acuity although there did appear to be a response to light in each eye. The pupillary reaction showed a 1+ response to direct light in each eye. The tension by palpation was normal in both eyes. The anterior segment examination showed a white plague-like structure on the back surface of the lens in both eyes. The vitreous cavity was clear with no visible hemorrhage in either eye. The posterior segment examination showed total retinal detachment with dragging of the retina toward the inferior temporal quadrant in both eyes. The retinal folds were drawn forward as well to fibrous tissue inserting on the back surface of the lens. IMPRESSION: Congenital bilateral retinal detachment both eyes. Variation of persistent hyperplastic primary vitreous or persistent fetal vasculature both eyes. RECOMMENDATION: I discussed my findings with the patient [sic] and husband. I indicated that the retinal detachments were inoperable. I indicated that the changes present in the back of the eye could not have taken place in 2 1/2 months in spite of the extent of the trauma at delivery.[4] Apart from the impressions of Faith's treating physicians, some insight into Faith's development may also be gleaned from certain evaluations and testing by the Seminole County Public Schools; including a Report of Adoptive Behavior Testing, dated August 21, 2003. On that test, administered at age 5 years, 7 months, Faith's ability to care for herself and interact with others ("Broad Independence") was measured based on an average of four areas of adaptive functioning: motor skills, social interaction and communication skills, personal living skills, and community living skills. There, Faith's motor skills, which included gross and fine motor proficiency tasks involving mobility, fitness, coordination, eye-hand coordination, and precise movements were said to be comparable to an individual at age 3-1 (3 years, one month). However, the examiner noted the basis for such conclusion, as follows: When presented with age-level tasks, Faith's gross-motor skills are age-appropriate. Age-level tasks involving balance, coordination, strength, and endurance will be manageable for her. When presented with age-level tasks, Faith's fine-motor skills are very limited. Age- level tasks requiring eye-hand coordination using the small muscles of the fingers, hands, and arms will be extremely difficult for her. (Emphasis added.) (Intervenor's Exhibit 4.) Faith's motor skills were also evaluated by the Seminole Public County Schools, and noted in a Physical Therapy Assessment/Evaluation report, dated October 2, 2003, as follows: OBSERVATIONS: Faith was evaluated in a variety of educational settings. She was observed in the classroom, during an obstacle course in another classroom, on the playground and around the school campus. During the obstacle course observation, Faith was participating in tunnel creeping, rockerboard activities, basketball and balance beam walking. Throughout the evaluation, it appeared that Faith had difficulty with some motor tasks due to body and spatial awareness as well as with her speed and intensity of her movements. With this evaluator, Faith followed all directions and seemed eager to please. * * * FUNCTIONAL MOBILITY: Faith ambulates indepen[den]tly in all directions demonstrating a forward lurch, hiking type of gait pattern, head is bent forwards. She is able to walk in the halls, on ramps and on sand on the playground without falling. She is able to creep and knee walk independently. Rises from the floor using a half kneel pattern or through a backwards crab type of pattern. Lowers self to floor with control. Transfers in/out of all chairs independently but teacher reports she often trips over her own feet. Ascends the stairs using a reciprocal pattern without holding the rail, descends using step to step pattern holding the rail. GROSS MOTOR: Faith sits on the floor with good balance in a criss cross position or sidesit position. She low kneels but weight bears on her right side more than her left and high kneels with good balance. She squats to pick an item up off the floor. Is able to jump off the floor and jumps on the trampoline at least 5 times in a row. She is able to walk on the balance beam taking 3 steps independently and attempts to walk backwards on it. On the playground, she is able to climb all structures independently with supervision. Within the school environment, Faith is able to push/pull her exterior doors and turn knobs of all interior doors. FINE MOTOR/VISUAL MOTOR: . . . According to notes from OCPS records, Faith may exhibit some visual motor issues as well as the visual impairment already noted. (Intervenor's Exhibit 4.) 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 in "injury to the brain . . . 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 and 766.31, Fla. Stat. In this case, Petitioner and Intervenor are of the view that Faith suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Faith did not suffer a "birth-related neurological injury" since her neurologic impairments are, more likely than not, prenatal (developmental) in origin, and resulted from cerebral malformation, as opposed to brain injury caused by oxygen during labor, delivery, or resuscitation. Moreover, NICA is of the view that Faith is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Faith's impairment To address the cause and timing of Faith's impairments, as well as their significance, the parties offered the records related to Faith's birth and subsequent development, portions of which have been addressed supra (Joint Exhibits 1-4, and Intervenor's Exhibit 2); a color photograph of Faith taken several hours after her birth (Petitioner's Exhibit 1); the deposition of Leon Charash, M.D., a physician board-certified in pediatrics, who practices pediatric neurology (Intervenor's Exhibit 1); the deposition of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibit 1); and the deposition of Michael Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibit 2.) Dr. Willis, whose deposition was offered on behalf of NICA, was of the opinion that the birth records failed to support a conclusion that Faith suffered a brain injury from oxygen deprivation during labor or delivery, but offered no opinion regarding the likelihood of brain injury from oxygen deprivation during the course of resuscitation or from trauma associated with Faith's delivery. Dr. Willis expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. After reviewing the records in this case, do you have an opinion within a reasonable degree of medical probability as to whether or not Faith Lapp qualifies for compensation under the NICA criteria you just described? * * * A. Yes, it was my opinion that there did not appear to be a loss of oxygen that occurred during labor or delivery that would result in this child's injury. * * * Q. Doctor, would you tell us how it is that you reached such an opinion as that? A. Yes. I reviewed the fetal heart rate monitor strips, which do show fetal heart rate decelerations during the latter few hours of labor. Although they're not persistent decelerations until about the last hour before delivery, and then the fetal heart rate tracing does show persistent variable decelerations . . . . The Apgar scores that the baby had were low, the Apgar score was one and six. Of course, the baby had -- there was a shoulder dystocia at birth resulting in a very difficult delivery. However, the umbilical cord blood gas was normal with a pH of 7.28. And the baby had a course in the hospital that did not suggest an ischemic event during labor or delivery. In other words, did not have seizures in the post-delivery period, no other organ failure like renal failure, hypotension, those types of things, and was discharged home on the fourth day. So looking at all of that, I felt there was not oxygen deprivation during labor or delivery. Q. . . . What is the significance of the fetal heart rate monitoring strips? A. Well, the fetal heart rate monitor strips are consistent with some degree of umbilical cord compression or variable decelerations prior to delivery, and all fetuses react differently to that. But certainly if the fetal heart rate decelerations persist and are significant, then it can lead to a baby that has lack of oxygen at birth. * * * Q. Dr. Willis, can you tell us the significance of the cord blood pH which you referenced earlier as being normal at 7.28? A. Right. Well, if a baby is born with a lack of oxygen, then they will have lack of oxygen and acidosis, which the two go together. And if the baby has lack of oxygen acidosis, then the cord pH should be low. If the umbilical cord blood pH is within normal limits, it would suggest that for whatever fetal heart rate decelerations or whatever Apgar scores that were present, that that wasn't a result of or did not cause or was not a result of lack of oxygen to the baby. * * * Q. Would you anticipate the pH to be abnormal if the deceleration that you saw on the fetal heart monitoring strips had continuously occurred? A. Well, the fetal heart rate monitor strip shows you that in a way that the baby is being stressed, but it doesn't really tell you if the baby is in distress. So different babies tolerate different amounts of fetal heart rate deceleration. So the bottom line here was the umbilical cord pH being normal. I felt that I could not say that those fetal heart rate decelerations that were present in that hour prior to birth really resulted in lack of oxygen to the baby. Q. In other words, you would have anticipated the pH score to be abnormal if the infant had been severely affected by the deceleration? A. That is correct. * * * Q. And the significance of the Apgar scores? A. Well, the Apgar score at one minute tells you how much resuscitation is going to be required for the newborn, and the one was simply one point for fetal heart rate. The baby at birth had no spontaneous respiration, it was pale and it was not moving, and the only points that the baby got -- therefore, was depressed at that time, and the Apgar score was one. The one- minute Apgar score is not a very good indicator of long-term neurologic development though. The five- and the 10 minute Apgar scores are better indicators for that. The Apgar score at five minutes was listed at six. That's still low. We consider Apgar score to be low if it is under seven. So a six is just under the cut-off. If the baby had an Apgar score of seven at five minutes, then it would have been considered a normal score . . . . * * * BY MS. LAPP: Q. [D]o you normally . . . [limit yourself as you did in this case]? A. Normally -- normally, in most cases, I don't limit myself as much as I am with your case. Q. You found that my case was -- A. I found it a little bit confusing. If I saw the fetal heart rate tracing that I saw here and the Apgar scores that I saw and if the cord pH was abnormal, or I didn't see a cord pH, then I would have assumed that there would have been hypoxia to this baby at birth. But the fact that the cord pH was so normal, I really have to stop and question that. So then with that -- and this happens in other cases. So with that then, I have to look and see what else. And from doing this for several years and practicing in my subspecialty, I know that babies that have hypoxic injury to the brain at time of birth or during labor frequently have seizures during the first hour or two after birth and many of the other things that we've talked about. So, for instance, if your baby would have had a seizure disorder an hour or two hours after birth and would have been hypotensive, I might have in that circumstance decided that I would have simply ignored the cord pH result because it wouldn't have fit everything that I see. Q. Could it be possible that . . . [it was] human error . . . ? A. That is why I look at many different things. Again, if I would have seen other things that would have been consistent with hypoxic injury to the brain at birth, then I would have said I am going to discard this cord pH because it just doesn't fit the rest of the picture. And so that is the reason I kind of limited myself to labor and delivery, because the baby is depressed after birth, and I really can't explain that. * * * Q. . . . When would she have had these seizures? A. It would have been after birth, relatively in a short period after birth. I guess what I'm trying to say is from a maternal fetal standpoint, the medicine that I practice, if I see a poor fetal heart rate tracing and a baby with low Apgars and then seizures two hours after birth and then a CT scan done at five or six days of life which shows a cystic structure -- shows maybe brain edema consistent with hypoxic injury, then that all becomes a very, very clear picture for me. In this case, unfortunately, the picture just was not so clear. Because of that, I wanted to limit myself to labor and delivery because I could not make such a clear picture of what happened after that. (Respondent's Exhibit 1.) Dr. Duchowny, whose deposition was also offered on behalf of NICA, was of the opinion, based on his review of the records and his neurologic evaluation of Faith on March 12, 2003, that Faith's impairments, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation during labor, delivery, or resuscitation, and that, regardless of the cause, Faith was not permanently and substantially mentally and physically impaired. Dr. Duchowny expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. Could you tell me, after reviewing the records concerning the records of both Linda Lapp and also Faith Lapp, your review of all the records you've just named and your examination of Faith Lapp, if you have reached an opinion which is in the reasonable degree of medical probability as to whether or not Faith Lapp sustained permanent mental and physical impairment as a result of her labor and delivery? A. Yes. I believe that Faith does not have a substantial mental or motor impairment and that her neurologic disabilities were acquired in utero and not the result of a birth related neurological injury that occurred during labor, delivery or resuscitation in the immediate post delivery period. Q. Could you tell me what you base that opinion on, Doctor? A. That opinion is based on the medical records which indicated that Faith's labor and delivery were complicated by a fractured left humerus, but that her cord blood pH was normal; her Apgar scores of 1 and 6 were reasonably good; that she did not have findings in the post natal period which are consistent with either mechanical injury or severe hypoxia; and that her evaluations, including my examination, all suggested that the types of neurologic disabilities that she has resulted from developmental abnormalities which occurred during the time that the brain was forming in interuterine life. Q. Doctor, in examining Faith's records, would you comment on the blood cord results? A. Well, her cord pH of the blood gas was 7.28, which is essentially normal. There is no indication of any hypoxia at that point in time when the blood gases were drawn from the cord. Q. Would you comment--you said earlier that her Apgar was relatively normal at 1 and 6. What did you mean by that? A. An Apgar score of 1 at one minute is not an unusual finding in normal deliveries. It reflects obstetrical medication; and I think the important Apgar score is at five minutes, which for Faith was 6. While not being perfect, it certainly is a decent Apgar score and inconsistent with asphyxia. * * * Q. Well, you indicated after that, if I heard you correctly, that you didn't see any post delivery signs of hypoxia. A. That's correct. Faith did require some ventilatory support for the first day, but she never developed systemic signs of hypoxia, which might produce abnormalities of her heart, liver, kidney, lungs, or cardiovascular system. * * * Q. You indicate further that there was no evidence of mechanical injury. Could you tell us for the record what you mean by "mechanical injury?" A. Well, there was no evidence of mechanical injury to the central nervous system, meaning there was no trauma to the brain or spinal cord. Faith did have a left Erb's palsy, which indicates dysfunction in the brachial plexus. I believe this was mechanically induced, but it was outside the central nervous system. * * * Q. Let's now turn to your opinion that Faith does not suffer from a substantial and permanent mental or physical impairment. Could you comment on the reasons why you believe that to be your opinion? A. Yes. At the time that I evaluated Faith last March, she was five years old. She did have a short attention span, and she was an overactive child, but she was able to talk. Albeit with a speech delay, she was able to talk. In fact, could speak in short phrases. She seemed to be socially appropriate. And with some effort, one could actually complete the examination because there would be some interaction between Faith and myself. She wouldn't cooperate for all testing but much of the testing did in fact get done. * * * BY MR. THOMPSON: * * * Q. . . . [Y]ou . . . [agree] that you believe there are neurologic abnormalities. Correct? A. Yes. Q. When you say that they were acquired in utero, you think that those were something that developed prior to the birthing process? A. Yes. Q. Is that what you mean? A. Yes. Q. Do you have a name for whatever that process was that caused that? A. I believe it is cerebral malformation. Q. And is that a chromosomal problem? A. Not usually. Q. What's usually the cause of that? A. Unknown interuterine acquired factors. Q. You have stated that you agree that there were mechanical injuries to this child during the labor and delivery process, correct? A. Yes. Q. You said one evidence of that was the fractured humerus. Correct? A. Yes. Q. She had some abnormalities on CT scan, I believe, some sort of--I can look for it, but you may remember what it was. I've got it right here. "A central subdural bleeding along the tentorium and faux cerebrum of a small amount." Do you recall that CT scan of the head that was taken shortly after her birth? A. Yes. Q. Would you agree that that was the result of a mechanical injury to her head? A. Yes. * * * Q. Would you agree that the pH of 7.28 in the cord blood may not represent what her true level of acidosis was? A. No, I wouldn't agree with that statement. Q. Could that be a lab error? * * * A. Well, anything is possible; but given the Apgar score and given her ultimate clinical findings, I regard that cord blood pH as being accurate. Q. What do you account for her being cyanotic? A. She already had brain dysfunction in utero. So, if you take a newborn, whose brain is not normal, and you provide stress, their response is often abnormal. Q. . . . Would you agree that Faith's laboratory work after her birth did show evidence of problems with her liver? A. No. Q. Are you familiar with what her LDH was? A. Yes. It was elevated, but the rest of her liver functions were normal. Q. Was her AST normal? A. I would have to check. I don't believe it was significantly elevated. Q. Was her ALT abnormal? A. Again, there were mild elevations that I don't think were significant, as I recall. Q. I may have asked you this. I apologize if I have. You do agree that her hydrocephaly is a result of secondary atrophy, as opposed to some other reason? A. No, I don't agree with that. Q. But you disagree with Dr. Trumbull [sic] when he said that in his report of July 9th, 1998?[5] A. Well, you would have to ask Dr. Trumbull [sic] what he meant by that. But my understanding is that there were findings, there were abnormalities, but they would not be classified as atrophy. It would really be failure to develop, which is different. Q. How can you distinguish between atrophy and failure to develop? A. Well, atrophy implies at one point all the brain structures were normal, and then something happened to damage those structures. Developmental problems imply that they never developed correctly in the first place so they never assumed normal proportions. The findings that Faith had on her MRI are more consistent with developmental abnormalities to her brain, so I would not classify them as atrophy. (Respondent's Exhibit 2.) Dr. Charash, whose deposition was offered by Intervenor, and whose testimony was supportive of Petitioner's claim, did not examine Faith, although he was accorded the opportunity to do so,6 but based on the records, he was of the opinion that Faith suffered a "birth-related neurological injury." With regard to brain injury, Dr. Charash was of the opinion that Faith's injury had two components, lack of oxygen and trauma (mechanical injury). As for oxygen deprivation being a likely course of brain injury, Dr. Charash noted Faith's one-minute Apgar score, which reflected severe depression; the need for resuscitation; an increased number of nucleated red cells; a low bicarb; a likely false pH, since Faith was given a bolus of sodium bicarb on delivery without adverse effect; and evidence of kidney malfunction, with transient abnormalities in her liver enzymes. As for trauma, Dr. Charash noted the subdural hemorrhage (cephalohematoma), observed on CT scan at 3 days of age, a likely result of trauma during delivery, as well as the severe bruising of the head documented following delivery. Finally, as further evidence of likely brain injury, Dr. Charash noted that on delivery, Faith's head, at 33 1/4 centimeters, was normal, but within a matter of months failed to grow as one would expect, and that she is now microcephalic. Consequently, Dr. Charash concluded that Faith likely suffered brain injury during labor, delivery, and resuscitation caused by oxygen deprivation and mechanical injury. (Intervenor's Exhibit 1, page 18.) As for the neurological consequences associated with such injury, Dr. Charash offered the following observations: EXAMINATION BY MR. TOWNSEND: * * * Q. Did . . . the lack of oxygen or the trauma affect her mentally in any way? A. Yes. I think it has left her with certain physical stigmata and certain intellectual stigmata. She has certain physical injuries based upon her birth difficulties and she's been left with behavioral and cognitive and learning difficulties; yes. Q. And that's clearly set forth in the records that you've reviewed, the cognitive and the physical problems? A. Yes. Let me deal with them one at a time, if I may. Q. All right, sir. A. The Orange County Public Schools have evaluated her and they find her functioning at percentiles which are far below age expectations. For example, there's a report of the Highland Elementary School in kindergarten described on 8/21/03, it's one of many reports, but this brings us up to five years and seven months . . . . At this point in time she's five years and seven months old. Her ability for functional independence is that of a three-year old which puts her in the lower one tenth of one percent of the population, 0.1, which means that 99 people out of a hundred outscore her in that area. They give her a rating for motor skills. They think her motor skills are three years and one month at an age of five years and seven months, which, again, puts her in the profoundly retarded area in terms of her motor skills, precise movements, coordination, fitness, etc. They have another score of social interaction and communication. Again, she's equivalent in one area to a three year one month old, another area she can pass tests at two years and two months, she has great difficulty with tasks that approach four years and eight months. And so it goes. They basically conclude that in every area she averages out three years and no months. She's five years and seven months. This gives her a quotient of an aggregate of all other adaptive performance in the range of retardation . . . . There is a psychoeducational evaluation done at the Seminole County Public Schools. This is carried out when she's five years and seven months. . . . The conclusion here . . . is . . . that the child is performing in areas that range from the very low category in the WJ-111 cognitive battery. She's considered to be significantly deficient. She's in the second percentile in the Bracken, B-R-A-C-K- E-N, basic concept scale. She's in the fourth percentile in some other test. On the Stanford Binet, in her verbal ability she does better, she's at the 12th percentile, and that's not retarded. . . . Now, her physical problems are of great significance here and, frankly, I think they relate to what I've mentioned before, her problems with balance, equilibrium, coordination, some of which may be tangentially a consequence of her visual impairments, but it is my opinion within a reasonable degree of medical certainty that her major physical problem aside from the structural change in her brain which makes it abnormally very, very small is her blindness or her severe visual impairments. As noted, Dr. Charash was of the opinion that Faith's principal physical injury was her visual impairment, which rendered her substantially physically impaired, and that Faith's visual impairment resulted from bilateral retinal detachment that was caused by mechanical injury during delivery.7 (Intervenor's Exhibit 1, pages 21-31.) Consequently, if credited, Dr. Charash's testimony would support the conclusion that Faith suffered bilateral retinal detachment caused by mechanical injury that rendered her substantially physically impaired, and that such impairment did not result from a brain injury. Notably, other physicians who have examined Faith, as well as the Seminole County School System, have concluded that Faith's gross and fine motor skills, except to the extent they may be diminished because of her visual impairment, are age appropriate. Consequently, given the record, there is no competent proof to support a conclusion that Faith is permanently and substantially physically impaired, because of a brain injury. Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Faith's delivery was traumatic and there is evidence to suggest that she may have suffered oxygen deprivation during labor, delivery and resuscitation, as well as mechanical injury, as evidenced by the cephalhematoma, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation or mechanical injury she may have suffered resulted in significant brain injury, or that she is permanently and substantially physically impaired. In so concluding, it is noted that Faith's hospital course post-delivery was not consistent with Faith having suffered an acute brain injury; that the imaging studies do not reveal brain injury, (i.e., evidence of atrophy) and are therefore most consistent with cerebral malformation; that Faith's current deficits have a congenital basis, at least in part; that Dr. Duchowny, as opposed to Dr. Charash, examined Faith, and based on his training and experience is most qualified to address the neurologic issues in this case; and that Dr. Duchowny, as opposed to Dr. Charash, was most candid, and his opinions were most consistent with the other proof of record. Consequently, it is resolved that the more credible proof demonstrates that Faith's impairment, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation, and that, regardless of the cause, Faith is not permanently and substantially physically impaired.
