Findings Of Fact Terrance Drake, Jr., was born on April 27, 2012, at Bayfront Medical Center in St. Petersburg, Florida. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Terrance. Dr. Sigurdardottir reviewed Terrance’s medical records, and performed an independent medical examination on him on October 14, 2015. In a neurology evaluation based upon this examination and an extensive medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a 3-year-5-month-old boy with a near miraculous recovery after a near fatal bradycardia due to likely placental abruption during delivery. He is at this time physically healthy but has a mild microcephaly. He has no obvious motor impairment and likely but not established mild language delay. The patient is doing well compared to his extremely dire situation at birth. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: There is evidence of near terminal hypoxia at birth resulting in infant being declared deceased, but self resuscitation occurred followed by a period of critical illness. Presumed hypoxic neurologic injury is plausible and timing of injury is in immediate perinatal period. No evidence suggests his injury having occurred apart from the immediate perinatal period. Results as to question 3: We expect a full life expectancy and an excellent prognosis, although mild mental delays relating to attention span, language, and/or behavior cannot be ruled out at this time. In light of the above-mentioned details, and with lack of substantial physical and motor impairment, I do not recommend Terrance being included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion was affirmed in her affidavit dated March 29, 2016. In order for a birth-related injury to be compensable under the NICA 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. Sigurdardottir’s opinion that Terrance does not have a substantial physical or mental 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. Sigurdardottir that Terrance does not have a substantial physical or mental impairment.
The Issue At issue in this proceeding is whether Cortina Fountain, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Ann Williams' prenatal course and the birth of Cortina Fountain Due to a paucity of proof, little is known of Ann Williams' prenatal care except that at or about 6:10 a.m., August 3, 1992, she was seen at Waterman Medical Center, Eustis, Florida, for a prenatal progress check. 1/ At the time, Ms. Williams complained of contractions at 15 minute intervals, dilation was noted to be "1-2, thick, high;" and fetal heart tone was noted to be in the 130 beat per minute range. The midwife was called, and upon receipt of her orders Ms. Williams was discharged home with instructions "to call Tavares Clinic today to be seen." At 12:15 p.m. that day, Ms. Williams, while at home, precipitously delivered her child, Cortina Fountain (Cortina), in the toilet. Emergency medical services were called, and Ms. Williams and Cortina were taken by ambulance to Waterman Medical Center, where they were admitted at 1:10 p.m. that day. 2/ Upon admission to the hospital, physical examination revealed Cortina to be a viable female infant, with normal activity and no overt abnormalities. No evidence of trauma, cyanosis or poor oxygenation function, or cardiac function was observed, and Cortina exhibited all normal neurologic reflexes, such as Moro, suck, and grasp. Moreover, no abnormality of the anterior fontanel of the infant was noted. Cortina remained in the hospital until August 5, 1992, when she was discharged to the care of her mother. During her two day residence in the hospital, Cortina did not evidence any abnormalities. Rather, she fed well and gained weight, did not demonstrate any bruising or trauma, and did not demonstrate any neurologic changes or other abnormalities. Cortina's subsequent development and readmission to the hospital Cortina was readmitted to Waterman Medical Center, through the emergency room, at or about 6:35 p.m., September 11, 1992. At the time, history reflected that her development was apparently uneventful until one or two days prior to admission. During that time, Cortina stopped taking her formula, became progressively lethargic, vomited, and experienced episodes of diarrhea. For the twenty four hour period prior to her admission, Cortina was noted to be febrile. Upon admission, Cortina was noted to be extremely emaciated, having a weight of 4 pounds 3 ounces compared to her birth weight of 5 pounds 12 ounces. She was also noted to be listless, markedly dehydrated, and with bulging anterior fontanelle and a temperature of 104 degrees Farenheit. Testing revealed electrolyte imbalance and metabolic acidosis. Such symptomology was consistent with central nervous system infection, and Cortina was started on oxygen, intravenous fluids, including dextrose, and Rocephin. At or about 10:35 p.m., September 11, 1992, she was transferred by helicopter to the neonatal intensive care unit at Florida Hospital Medical Center (Florida Hospital) in Orlando, Florida. Cortina remained at Florida Hospital until October 2, 1992, when she was discharged to the care of her mother. Her course at Florida Hospital was adequately set forth in her discharge summary as follows: PHYSICAL EXAMINATION: Physical examination on arrival at Florida Hospital Medical Center, pediatric intensive care unit, revealed a marasmic, somewhat listless, black female who was markedly dehydrated. Temperature was 103 degrees Fahrenheit. Heart rate ranged between 170 and 190, and blood pressure was 83/53. She was intubated, and the anterior fontanelle was somewhat sunken at this time. IMPRESSION ON ADMISSION: FEVER WITH A POSSIBILITY OF SEPSIS. BORDERLINE HYPOGLYCEMIA. SEVERE DEHYDRATION. MARASMUS. RULE OUT A METABOLIC DISORDER OR A VIRAL ENCEPHALOPATHY. HOSPITAL COURSE: Upon admission, a central line was placed, and patient was placed on assisted ventilation. The fontanelle was initially sunken but after adequate hydration was noted to be bulging during the night. A computerized axial tomo- graphy scan of the brain was obtained on an emergency basis, and this revealed diffuse brain swelling. The patient was started on hyperventilation with the addition of intravenous mannitol. Additional laboratory data that was obtained included a liver profile which showed her albumin to be 2.0, SGPT was 52, SGOT 39, GGT 350, serum ammonia 161 which is increased, serum lactase was 6.5 which is also increased. Reticulocyte count was 3.7 [percent] and hemoglobin and hematocrit were decreased to 5.8 and 18.0 respectively. Endotracheal tube aspirate that was sent for respiratory syncytial virus came back negative. Hospital course will be further discussed on the problem list. PROBLEM [NO.] 1: ENCEPHALOPATHY WITH BRAIN SWELLING AND SEIZURE DISORDER. After the initial presentation and the finding of cerebral swelling, the patient was started on hyperventilation with intravenous mannitol. She was noted to have fisting of the hands and occasional jerky movements that were associated with bradycardia, and an electroencephalogram that was done revealed seizure activity. Hence, she was started on intravenous phenobarbital which was slowly increased over 24 hours until clinical control of the seizures was obtained. Subsequent electroencephalograms that were done on September 14, 1992, still showed frequent multifocal epileptiform discharges, although there was no clinical evidence of seizure disorder. In light of this, her dose of phenobarbital was increased after an initial minibolus. A pheno- barbital level in the upper 20s to lower 30s was maintained with a dose of phenobarbital 6 mg b.i.d. Repeat electroencephalograms done on September 17, 1992, and September 25, 1992, were abnormal, as manifested by diffuse sharp and slow wave discharges in the waking state which got accentuated by sleep. . . . on September 12, 1992, the patient was also started on intravenous acyclovir because of the possibility of herpes encephalitis. A lumbar puncture was not repeated for further cerebrospinal fluid studies because of the presence of the cerebral swelling, but an attempt to obtain cerebrospinal fluid via a subdural tap was futile. The patient was slowly weaned off the ventilator and finally extubated on September 17, 1992. The mannitol was weaned off over the next four days and discontinued on September 20, 1992. The Rocephin was continued for a total of 10 days and the acyclovir for a total of 14 days. At the time of discharge and for at least one week prior to discharge, she was able to track very well, was feeding well, and had essentially a normal neurologic examination. Auditory brain stem evoked response studies that were done revealed normal hearing in both ears. A computerized axial tomography scan of the brain that was done on September 22, 1992, showed diffuse, decreased density within the cerebral hemispheres bilaterally with preservation of the basal ganglia and thalamus. There was interval volume loss in the cerebral hemispheres which was felt to be consistent with resolution of the cerebral edema. PROBLEM [NO.] 2: DEHYDRATION AND ELECTROLYTE ANOMALIES. On the day of admission, the patient had a BUN of 38 with a creatinine of 1.2 and a glucose of 60. She was placed on D10 one-quarter normal saline and the dehydration was corrected slowly over 48 hours. Over the ensuing week, she developed anasarca, mostly due to hypoalbuminemic state, but this resolved at least one to two weeks prior to discharge. A Chem-21 that was done on September 29, 1992, showed a sodium of 137, potassium 5.2, chloride 106, CO2 20.6, glucose 96, creatinine 0.5, BUN 13. The rest of the Chem-21 profile was essentially with normal limits. Specifically, the albumin had risen to 3.5 on September 29, 1992. PROBLEM [NO.] 3: ANEMIA. At the time of her admission, the patient's hematrocrit was 22 [percent] but this dropped to 18 [percent] after she was rehydrated. She was transfused on two occasions, and after this she maintained a reasonable hematocrit until the time of discharge. A complete blood count that was done on September 29, 1992, showed a white blood cell count of 13,800, hemoglobin 14.0, hematocrit 40.8, platelet count 151,000. There were 41 segs, 1 band, 43 lymphs, 13 monos and 2 eosinophils. * * * PROBLEM [NO.] 4: HEPATOPATHY WITH HYPERLACTASEMIA AND HYPERAMMONEMIA. It was felt that the patient's hepatopathy and abnormal laboratory data related to the liver function was probably due to a viral or metabolic problem. Urine for amino acid screen was essen- tially negative, and urine for organic acid screen came back showing an abnormal peak with octeny- lsuccinic acid. It was felt by Dr. McReynolds that this is an emulsifier that is used in certain infant formulas, and repeat testing for this purpose has been scheduled on an outpatient basis. The metabolic studies that are pending at the time of discharge include blood amino acid profile and also serum isocarnitine profile. PROBLEM [NO.] 5: MALNUTRITION. Patient looked significant marasmic on the date of admission and had an admission weight of 4 lb. 3 oz. At the time of discharge, she was toler- ating full-strength Pregestimil and was gaining weight daily. Her discharge weight is 6 lb. 7 oz. (2.9 kg). Her head circumference was 35.5 cm at the time of discharge. PROBLEM [NO.] 6: INFECTIOUS DISEASE. In spite of the septic workup, there was no identifiable causative organism, although a viral etiology could not be totally ruled out. Blood for herpes simplex IgM titers was un- revealing. In spite of the negative studies, the patient was given the benefit of the doubt and treated with meningitic doses of Rocephin for 10 days and meningitic doses of acyclovir for 14 days. . . . Cortina's discharge diagnoses were "severe encephalopathy with cerebral edema and epilepticus," "ongoing seizure disorder," and "anemia with abnormal peripheral smear." The cause and severity of Cortina's neurologic injury Although the proof demonstrates that Cortina suffered some neurologic impairment, as a consequence of events at or about the time of her readmission to the hospital on September 11, 1992, it is quite unrevealing as to the severity of that impairment. Consequently, the proof fails to support the conclusion that any neurologic injury Cortina suffered rendered her permanently and substantially mentally and physically impaired. Regarding the timing and cause of Cortina's neurologic injury, the proof is compelling that, notwithstanding the circumstances of her delivery, Cortina was, at birth, a normal, vigorous infant, with no apparent abnormalities. Her development thereafter was likewise uneventful, until one to two days prior to September 11, 1992, when she was readmitted to the hospital, at approximately five weeks of age. In the opinion of Lance Wyble, M.D., a board certified neonatologist, Cortina's presentation on September 11, 1992, was most consistent with a viral etiology which, given her history, had its genesis within the 24 to 48 hour period immediately preceding her admission on September 11, 1992. It was further Dr. Wyble's opinion that such was the most likely cause of any neurologic injury Cortina suffered, and that any injury she suffered was wholly unrelated to the birthing process or her delivery. Of a similar opinion was Charles Kalstone, M.D., a board certified obstetrician. The opinions of Doctors Wyble and Kalstone are grossly consistent with the proof of record regarding Cortina's birth and her subsequent readmission to the hospital on September 11, 1992, and are credited.
The Issue For the purpose of determining compensability, the issue is whether the injury claimed is a birth-related neurological injury, as defined by section 766.302(2), Florida Statues. The specific issue that remains is whether the brain injury caused by oxygen deprivation or mechanical injury, which rendered Paj Xiong (Paj) permanently and substantially mentally and physically impaired, occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
Findings Of Fact Pursuant to the parties’ stipulations at the final hearing, the Findings of Fact set forth in paragraphs 1 through 5 are undisputed. Paj was born on March 13, 2018, at Winnie Palmer, a “hospital,” as defined by section 766.302, and was alive at birth. Paj was a single gestation with a birthweight in excess of 2,500 grams. Obstetrical services were delivered by Dr. Odom, a Neurological Injury Compensation Association (NICA) “participating physician,” as defined in sections 766.302 and 766.309, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. The notice requirements of section 766.316 were satisfied by the Intervenors. Dr. Odom is a practicing obstetrician/gynecologist (OB/GYN) and at all times relevant was employed with Orlando Health Physician Associates, LLC. Petitioner Npaug Xiong (Mrs. Xiong) first sought prenatal care and treatment with Dr. Odom on September 12, 2017, at which time she was 13 weeks and two days pregnant. Mrs. Xiong’s relevant medical history reveals that she had been pregnant on seven prior occasions, resulting in five births. The prior births had been vaginal deliveries without complication. Her expected delivery due date with this pregnancy was March 24, 2018. An ultrasound conducted on February 20, 2018, revealed that the fetus was in a breach position, thus “presenting in a buttocks first” position. On March 8, 2018, Dr. Odom determined that the fetus remained in a breech position. Dr. Odom advised Mrs. Xiong of the external cephalic version (ECV) procedure, which is used to turn a fetus from a breech position into a head- down position in anticipation of a vaginal delivery. Dr. Odom credibly testified that the plan was to schedule Mrs. Xiong for an attempt at ECV and, if successful, her membranes would be ruptured and she would proceed with a total induction of labor. If unsuccessful, Dr. Odom would proceed with a Cesarean section delivery (C-section). In either event, the plan was to deliver the baby following the attempt at ECV. On March 11, 2018, Mrs. Xiong returned to Winnie Palmer for a labor check. At this time, she was 38 weeks pregnant. Autumn Elms, M.D., an OB/GYN, examined Mrs. Xiong. Dr. Elms testified that Mrs. Xiong’s chief complaint was that of contractions, which she documented as a two out of 10 on the pain scale. Dr. Elms performed a vaginal exam, which revealed that Mrs. Xiong’s cervix was four centimeters (cm) dilated and 50 percent effaced. She also documented that the baby was “minus 3,” meaning that the baby had not descended down into the pelvic canal. During this visit, Mrs. Xiong was connected to an external fetal monitor for approximately one hour. While monitored, Mrs. Xiong only had one contraction. Dr. Elms’s impression and overall assessment was that of “false labor,” which she defined as a patient’s complaint of perceived labor without documented findings to support labor. Mrs. Xiong returned to Winnie Palmer on March 13, 2018, at 2:09 p.m., to proceed with the attempt at ECV, and subsequent delivery. As reported on the History and Physical completed by Dr. Odom, Mrs. Xiong “reports regular painful contractions since earlier today.” Mrs. Xiong also reported no loss of fluid and “only a small amount of bloody show.”1 A vaginal exam was performed by Dr. Odom, which revealed that her cervix remained at four cm dilated; however, she was now 70 percent effaced and there was the presence of bloody show. Mrs. Xiong was placed on an external fetal monitor. The fetal monitoring strips, as interpreted by Dr. Robinson, establish that from 3:09 p.m., to the beginning of the first ECV attempt, Mrs. Xiong experienced 15 separate contractions. During this time period, at approximately 3:40 p.m., a medication, Terbutaline, was administered. The purposed of this medication is to inhibit contractions and relax the uterus in preparation for the ECV procedure. Mrs. Xiong also received an epidural to prevent her from experiencing severe pain associated with the ECV. Dr. Odom began the first ECV attempt at approximately 4:26 p.m. During the first attempt, the fetal heart rate dropped to 80 beats per minute (bpm) for approximately one to two minutes. After external pressure was released, the baby’s heart rate rebounded to 120 bpm. Dr. Odom credibly opined that a normal fetal heart rate in a third trimester infant is between 110 and 160 bpm. A second ECV attempt was made at approximately 4:50 p.m. Dr. Odom testified that the attempted procedure would have taken roughly 10 minutes. Again, the procedure was unsuccessful and the fetal heart monitor was placed back on Mrs. Xiong. 1 Christopher Robinson, M.D., Intervenor’s OB/GYN and maternal-fetal expert, explained that bloody show is the “natural progress of cervical change” and that “when the cervix is changing and thinning out and undergoing stretch, there are small blood vessels that are disrupted in the stroma of the cervix, leading to that bleeding and that presentation.” The strips from the fetal heart rate monitor provide that the infant’s heart rate ranged from about 100 to 110 bpm from approximately 5:00 p.m. until 5:21 p.m. Dr. Odom credibly testified that during this period, the heart monitoring strips were consistent with potential compromise and/or hypoxia, and, therefore, an emergency C-section was necessary. At 5:21 p.m, the heart rate monitor was removed to transition Mrs. Xiong to the operating room for a C-section. The C-section delivery was completed by 5:31 p.m. At birth, Paj was profoundly depressed. His immediate heart rate was less than 30. His Apgar scores were 1 at one minute, 4 at five minutes, and 4 at 10 minutes of life.2 At one minute of life, Paj had a heart rate less than 100, no respiratory rate, flaccid muscle tone, no response to reflex, and was blue and pale. At 10 minutes of life, Paj remained severely depressed. Positive pressure ventilation by intubation was required for respiratory distress with an increase in heart rate to 150 bpm. Cord blood gas pH obtained was 7.29 with a base excess of -5. The initial arterial blood gas pH was 7.07 with a base excess of -21. Paj’s newborn hospital course was complicated by multi-system organ failures, including respiratory distress, seizures, acute renal failure, adrenal hemorrhage, thrombocytopenia, feeding difficulty, elevated liver functions, hearing loss, hypoxic ischemic encephalopathy (HIE), and brain hemorrhage. An MRI obtained on Paj’s fifth day of life had findings suggestive of HIE with right cerebellum hemorrhage. As noted above, the parties stipulate that Paj sustained a brain injury caused by oxygen deprivation or mechanical injury and was thereby rendered permanently and substantially mentally and physically impaired. 2 An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 834 n. 2 (Fla. 2011) citing Nagy v. Fla. Birth-Related Neuro. Injury Comp. Ass’n, 813 So. 2d 155, 156 n. 1 (Fla. 4th DCA 2002). Each factor is scored 0, 1, or 2; the maximum total score is 10. There is no record evidence to support a finding that the injury to Paj’s brain occurred prior to the ECV attempts on March 13, 2018. 3 It appears undisputed that the original injury occurred during or immediately following the attempts at ECV, but prior to the C-section delivery. The parties presented expert witness testimony concerning, inter alia, whether Mrs. Xiong was in “labor” during the time of the original injury and whether the injury continued to manifest during delivery, and into the immediate post-delivery period. The expert medical testimony is addressed below. Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Mrs. Xiong and Paj and opine as to whether Paj sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. Dr. Willis’s ultimate opinions are that Mrs. Xiong was in labor when she presented to Winnie Palmer on March 13, 2018, and that the initial injury occurred during or after the second ECV attempt and continued through delivery and into the immediate post-delivery period. Dr. Willis defines the term “labor” as uterine contractions that result in a change in the cervix. The change can be either a change in dilation or effacement, or both. In support of his opinion that Mrs. Xiong was in labor, Dr. Willis testified that her cervix had increased in effacement from 50 percent on March 11, 2018, to 70 percent on March 13, 2018. Additionally, as compared to her prior visit to Winnie Palmer on March 11, she was now experiencing painful uterine contractions since earlier in the day. Moreover, Dr. Willis opined that the bloody show, while not indicative of labor in and of itself, is a complementary indication of labor. 3 The record evidence demonstrates that Mrs. Xiong was not in labor on March 11, 2018. Dr. Willis also opined that the initial injury occurred after the second ECV attempt as the baby sustained fetal bradycardia, which he defined as a “baseline heart rate that drops for ten minutes or more.” He further opined that the baby was bradycardic, and consequently suffering oxygen deprivation to the brain, from approximately 5:00 p.m. through delivery. Dr. Willis testified that the injury continued through delivery and into the immediate post-delivery period; however, he could not ascribe a percentage or certainty to the level of “insult” or “injury”: I mean, brain injury, I believe, did occur, but how much occurred then versus during delivery and the postdelivery period, there’s no way to tell with any certainty how much occurred during one particular time period in that frame. In support of his opinion that the injury to the brain was continuing post-delivery, Dr. Willis noted that Paj’s heart rate at birth was less than 30; his Apgar score was 1; he was profoundly depressed; and the blood gas results obtained approximately 30-35 minutes after birth (and after resuscitative efforts) were consistent with ongoing oxygen deprivation and resulting or continuing brain injury. Respondent also retained Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review the medical records of Mrs. Xiong and Paj, and to conduct an Independent Medical Examination (IME) of Paj. Dr. Bello- Espinosa opines that Paj suffered from an acute severe hypoxic ischemic injury, and, as a result, suffers from a permanent and substantial mental and physical impairment. Dr. Bello-Espinosa opines that certain findings or descriptions of Paj at birth such as poor Apgar scores, that he was apneic, had a low heart rate, was flaccid, and cyanotic are consistent with a hypoxic ischemic brain injury at the time of birth. He does not offer, however, an opinion as to whether Mrs. Xiong was in labor at the time of the injury. Additionally, while Dr. Bello-Espinosa testified that this type of injury is “usually a continuum of injury,” he could not offer an opinion on the exact timing: Q. Is there any way for you to determine within a reasonable degree of medical certainty as to the exact timing of when these injuries occurred with respect to whether it was before delivery, during delivery or during the immediate postdelivery period? A. No. As noted above, Intervenors retained and presented the deposition testimony of Dr. Robinson. Dr. Robinson’s ultimate opinion is that Mrs. Xiong was in labor at the time when she presented to Winnie Palmer on March 13, 2018. Dr. Robinson defines the term “labor” as uterine contractions that result in cervical change, and the change can be dilation and/or effacement. He opines that Mrs. Xiong was in labor for several reasons. First, Dr. Robinson noted that Mrs. Xiong had reported regular and painful contractions, which were supported by the fetal monitoring strips. His review of the strips revealed that she had at least 15 contractions from 3:09 to 4:27 p.m. Second, her cervical effacement was documented to be 70 percent, thus a 20 percent progression since she was examined on March 11, 2018. According to Dr. Robinson, there is a “big difference” between 50 and 70 percent effaced. Finally, she also had some bloody show over this time course when examined. Dr. Robinson opined that, on March 13, 2018, Mrs. Xiong was in “transitional labor.” He expanded on this opinion as follows: So, I believe that, you know, what was happening on that date is she was transitioning from latent to active phase labor, so she basically had achieved a regular uterine contraction pattern with a breech presentation, and she was now progressing toward active phase labor. Now, was she in active phase labor, no, but she was in labor, labor being defined as uterine contractions with cervical change, that’s dilation and/or effacement. In this case, it was specifically effacement. Dr. Robinson testified that the original injury to the fetus occurred after the second ECV attempt and prior to the C-section delivery. During this time period, he opine that there was persistent bradycardia, lack of variability in heart rate, and suggested hypoxia. With respect to whether the injury concluded prior to delivery, Dr. Robinson testified that, “[i]t would not necessarily have been completely during that time, it would have probably continued on beyond that time after delivery, based upon looking at what the Apgars are like.” He further testified, however, that with respect to post- delivery, he would defer to a pediatric neurologist overall as to the completeness and timing of injury. The undersigned finds that Drs. Willis, Bello-Espinosa, and Robinson possess significant education, training, and expertise, and are well-qualified and credentialed to render the above-noted opinions. The undersigned finds their opinions as set forth above to be credible. Petitioners retained and presented the deposition testimony of Sarah Mulkey, M.D., who is board certified in neurology with special qualifications in child neurology. Dr. Mulkey provided no opinions concerning whether Mrs. Xiong was in labor at the time of the original injury. Her ultimate opinion is that the brain injury was complete by the time of the C-section delivery, and that there was no ongoing further neurologic injury thereafter. Dr. Mulkey testified that an MRI obtained five days after birth is consistent with an acute injury that occurred over the span of 10 to 30 minutes. She conceded, however, that “we can’t tell exactly which 30 minute window back in history.” With respect to the low Apgar scores, Dr. Mulkey opined that “[t]he baby has already had an injury, and what we’re seeing are the neurological effects of that in these ten minutes as we’re scoring these Apgars. But it’s not – it’s not an ongoing new injury.” Dr. Mulkey was asked when, after delivery, Paj was receiving sufficient oxygen to the brain so that the brain was not suffering oxygen deprivation. In response, Dr. Mulkey testified that “. . . when the baby’s respiratory status was taken care of with being ventilated and the heart rate was good, this baby was then perfusing the brain pretty quickly.” The undersigned finds that Dr. Mulkey possesses significant education, training, and expertise, and is well-qualified and credentialed to render the above-noted opinions. Her opinion that Paj sustained an acute brain injury is credited. The undersigned, however, finds her opinion with respect to the injury being complete at the time of delivery to be less persuasive and entitled to less weight. Petitioners also retained and presented the deposition testimony of Berto Lopez, M.D. Dr. Lopez is an OB/GYN, however, he is not currently board certified and does not have admitting privileges at any hospital. At the final hearing, Dr. Lopez’s license to practice medicine had been revoked by the Department of Health, Board of Medicine. Dr. Lopez’s ultimate opinion is that Paj suffered a brain injury caused by oxygen deprivation and was rendered permanently and substantially mentally and physically impaired; however, said injury did not occur in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Lopez testified that Mrs. Xiong was not in labor on March 13, 2018, when she presented to Winnie Palmer because she did not have a complaint of increasing pain, she did not demonstrate a cervical change that could not be easily explained by interoperative bias (two different examiners coming up with slightly different results), and she did not have progressive dilation or effacement of a significant nature. Additionally, he opined that labor was not indicated as her contractions were not every two to three minutes. 44. While Dr. Lopez conceded that there had been a change in the effacement of Mrs. Xiong’s cervix from 50 to 70 percent, however, he discounted this change and attributed the same to the subjective scoring of two separate physicians. Dr. Lopez also acknowledged the documentation that Mrs. Xiong had bloody show. He opined that it is common in dilated women who have had multiple children to free up cervical mucus with or without blood, and the bloody show may have been due to the prior digital vaginal examination. In support of his opinion that Mrs. Xiong was not in labor at the time of injury, he also testified that at no time on March 13, 2018, was it ever documented that she was in labor, which he would have expected given that Mrs. Xiong was being assessed for the purpose of performing an ECV. Additionally, he testified that there is no indication that the Terbutaline or epidural were administered to abate labor. Dr. Lopez agreed that there are several stages of labor. He defined “active labor” as cervical change and more than five centimeters of cervical dilation. “Latent phase” labor was defined by Dr. Lopez as early labor wherein the patient might be having contractions, the cervix may be dilated (typically less than 6 cm), and she is progressing in effacement and dilation. When asked whether early labor is considered within the definition of labor, he testified that “[i]t’s one definition, yes.” He also agreed that painful contractions over several hours, change in cervical effacement, persistent dilation, and bloody show, would be consistent with a woman being in labor, whether it’s active or early labor. Dr. Lopez further opined that the initial injury did not commence on March 13, 2018, until sometime after the second ECV attempt; however, he deferred to a pediatric neurologist as to when the hypoxic injury would have concluded. Dr. Lopez possesses significant education, training, and experience to render the above-noted opinions. Dr. Lopez’s opinion concerning the timing of the initial injury is credited as well as his opinion that there was no documentation of labor on March 13, 2018. His opinion concerning whether Mrs. Xiong was in labor on March 13, 2018, is found less persuasive and entitled to less weight. Intervenor, Dr. Odom, also testified concerning whether Mrs. Xiong was in labor. She acknowledged that, on March 13, 2018, neither she nor any other healthcare provider involved in Mrs. Xiong’s care and treatment documented that she was in labor. She also confirmed that Mrs. Xiong’s membranes were intact at all times prior to the C-section delivery. Dr. Odom testified that Mrs. Xiong was not in “active labor” that day because her cervix was not dilated more than four centimeters, however, she opined that Mrs. Xiong was in “early labor” as she was experiencing contractions and there had been a cervical change in effacement from her prior examination on March 11, 2018. Dr. Odom declined to offer an opinion as to when the injury occurred. In support of the position that Mrs. Xiong was not in labor at the time of the original injury, Petitioners contend that labor is a contraindication to the performance of an ECV procedure, and, therefore, Dr. Odom would not have performed the ECV procedure if Mrs. Xiong was, in fact, in labor. Dr. Lopez testified that active labor is a contraindication in performing an ECV and that he believes the delivery nurse probably would not have permitted the procedure if she felt Mrs. Xiong was in labor. Dr. Willis confirmed that an ECV should not be attempted if the mother is in active labor because the contractions and the location of the fetus in the pelvis would make it difficult, if not impossible, to turn the baby externally. Dr. Robinson opined that labor is not a contraindication to an ECV and that it is done routinely. He acknowledged, however, that there are complicating factors that labor presents for performance of an ECV. Specifically, he testified that if the uterus is contracting regularly and will not relax, the fetus cannot be turned, and there is a potential for rupturing the membranes. The undersigned finds that, on March 13, 2018, Paj sustained an injury to his brain caused by oxygen deprivation occurring in the course of labor. The undersigned further finds that the injury was not complete at the time of the C-section delivery and continued into resuscitation in the immediate post-delivery period.
Findings Of Fact Dariel Antonio Molina Benitez was born on September 29, 2011, at Baptist Hospital in Miami, Florida. Dariel weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Dariel’s medical records. In an affidavit dated October 17, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, Cesarean section was done for variable FHR decelerations during labor. The baby was not depressed at birth. Apgar scores were 9/9 and the baby stated to be vigorous after birth. The medical records do not suggest a birth related hypoxic event. 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 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 is credited. Respondent retained Michael Duchowny, M.D., (Dr. Duchowny), a pediatric neurologist, to evaluate Dariel. Dr. Duchowny reviewed Dariel’s medical records and performed an independent medical examination on him on September 21, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Dariel’s general, physical and neurological examinations today are entirely within normal limits. There are no focal or lateralizing findings to suggest a structural brain injury. I have reviewed medical records for Dariel sent by your office on September 16, 2016. The records are primarily directed at long- term follow up and confirm that Dariel’s overall development has proceeded normally with a slight expressive language delay. An MRI scan of the brain on September 10, 2015, apparently revealed mild generalized cortical atrophy but was otherwise within normal limits. Dariel underwent a genetic workup including a chromosomal microarray that was normal. All other laboratory parameters were similarly within normal limits. An EEG obtained on April 1, 2014 was unremarkable. Given Dariel’s normal mental and physical status, I am not recommending him for compensation within the NICA program. Dr. Duchowny stated his ultimate opinion in an affidavit dated October 18, 2016, in which he opined, “Based on review of the medical records and the neurological evaluation and given Dariel’s normal and physical status, Dariel does not have a substantial and permanent mental or motor impairment, and I am not recommending him for compensation within the NICA program.” Dr. Duchowny’s opinion that Dariel does not have a substantial and permanent mental or motor 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. 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. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dariel does not have a substantial and permanent mental or motor impairment.
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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 post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
The Issue At issue in this proceeding is whether Thalya Greene, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Daniel Greene and Lizbeth Greene, are the parents and natural guardians of Thalya Greene (Thalya), a minor. Thalya was born a live infant on August 27, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during Thalya's birth was R. William Quinlan, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Thalya's birth At or about 4:35 a.m., August 27, 1998, Mrs. Greene (with an estimated date of confinement of September 19, 1998, and the fetus at 36+ weeks) presented to Baptist Medical Center in early labor. Vaginal examination revealed the membranes to be intact, and the cervix at 3 centimeters dilatation, effacement at 50 percent, and the fetus at station -2. External fetal monitoring applied at 4:37 a.m., reflected a reassuring fetal heart tone, and Mrs. Greene was admitted to labor and delivery at or about 4:40 a.m. Mrs. Greene's labor progressed steadily, and external fetal monitoring reflected a reassuring fetal heart tone throughout the course of labor and delivery. At or about 7:30 a.m., dilatation was noted as complete; at 7:49 a.m., the membranes were artificially ruptured, with clear fluid noted; and at 7:55 a.m. Thalya was delivered spontaneously (cephalic presentation) without incident. On delivery, Thalya was noted as "pale blue" in color, and was bulb suctioned and accorded free flow oxygen; however, she breathed spontaneously, and did not require resuscitation. Initial newborn assessment noted no apparent abnormalities. Apgar scores were recorded as 7 at one minute and 8 at five minutes. The Apgar scores assigned to Thalya are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Thalya's Apgar score totaled 7, with heart rate, muscle tone, and reflect irritability being graded at 2 each; respiratory effort being graded at 1; and color being graded at 0. At five minutes, Thalya's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflex irritability being graded at 2 each, and color again being graded at 0. Thalya was admitted to the newborn nursery at or about 8:50 a.m. Assessment on admission was grossly normal. Thalya's status post-delivery was uneventful until 11:30 a.m. (approximately 3 1/2 hours after delivery) when she experienced a choking episode (secondary to spitting up) and turned dusky over the face and chest. In response, Thalya was placed under a radiant warmer, suctioned, and given blow by oxygen (for approximately 3 minutes) until she pinked up. Thereafter, Thalya's course was again uneventful until 1:00 a.m., August 28, 1998, when she again appeared dusky, and was accorded blow by oxygen. At the time, it was noted that the CBC drawn during the first dusky spell was within normal limits and that the blood culture that had been obtained was preliminarily negative. Thereafter, Thalya's course was again without apparent complication until approximately 10:23 p.m., when she "became dusky not associated with feed," and was again suctioned and accorded blow by oxygen. At that time, Thalya was noted as "pink and intermittently tachypneic with rare grunting." Following neurologic consult, Thalya was transferred to the neonatal intensive care unit (NICU) for further observation and management. Thalya was received in the NICU at 10:34 p.m. At the time, she was observed as "warm and pink with grunting noted." EKG leads were applied and revealed a heart rate of 180, respiratory rate of 50, blood pressure of 76/49, and a rectal temperature of 100.3. Examination revealed nystagmus (an involuntary rapid movement of the eyeball) and some jerky movements of her extremities. CBC showed a white blood count of 5,000, and blood culture was ordered. Working diagnosis was "suspected septis" and Thalya was started on ampicillin and gentamicin. At 12:35 a.m., August 29, 1998, Thalya evidenced symptoms of seizure activity, and was loaded with phenobarbital. Spinal tap of August 29, 1998, as well as the results of the blood culture drawn of August 28, 1998, was positive for Group B Streptococcus. An infectious disease consult was obtained and Thalya was managed on antibiotics for three weeks, and maintained on phenobarbital for her seizure activity. CT and MRI of the head on August 29, 1998, were normal; however, a head ultrasound of September 3, 1998, showed minimal intra-axial fluid. Chromosomal studies were normal. Thalya was discharged to her parents' care on September 15, 1998, on phenobarbital and ampicillin. Final diagnosis on discharge included bacterial infection due to Streptococcus, Group B; streptococcal meningitis; and seizures. Thalya's subsequent development Following her discharge from Baptist Medical Center, Thalya was initially followed by Carlos H. Gama, M.D., a pediatric neurologist. Dr. Gama's first neurological examination occurred on November 3, 1998, when Thalya was 2 months of age, and was reported as follows: I had the opportunity of seeing Thalya for a neurological evaluation. The following are my diagnosis and recommendations. Diagnosis: Status post neonatal Group B Streptococcal meningitis. Seizures. Hypotnia. Recommendations: Obtain EEG. Obtain trough Phenobarbital level. Obtain records. Return to this office in one month for reevaluation and further recommendations. Comments: * * * . . . Since discharged from NICU mother reports that Thalya had done well. She is feeding well and thriving. No seizures have been noted. She continues on Phenobarbital, taking 4mls po bid. A blood level was obtained prior to this visit but this result is not available. Mother reports that Thalya has normal awake and sleep cycles. She seems to be moving all extremities spontaneously and symmetrically. There has not been any apneic spells or unusual behaviors suggestive of seizure like activity . . . . The examination today reveals a head circumference is 40.5cm (in the 90th percentile). Her weight is in the 90th percentile and height is in the 50th percentile. The baby is alert. She is able to turn her eyes to light, but does not track the examiner in a 90 degree range. The pupils were equal and reactive. Red reflex was present bilaterally. Facial grimace was symmetric. Suck was appropriate. Strength seems to be grossly unremarkable. Deep tendon reflexes were +2 in the upper extremities, +3 in the lower extremities at the knees and +2 at the ankles. No clonus was seen. Babinski's were present bilaterally. There was evidence of hypotonia of her axial musculature, being approximately moderate in severity. There was also decrease in head control. The patient's moro reflex reveals appropriate abduction of her upper extremities symmetrically. Traction response was decreased. Tone and neck reflex was absent. Palmar and Plantar reflexes were present. Muscle tone was low. The sensory examination to touch seemed to be unremarkable. Spine examination was noncontributory. The patient has no obvious dysmorphic features, organomegalies or skin abnormalities. Anterior fontanel was open and normal tense with no musculatures. Therefore, it is my opinion that Thalya has a history of neonatal Group B Streptococcal meningitis and sepsis associated with seizures. She is now seizure free. Her examination is remarkable for hypotonia, which most likely is on central basis. Therefore, the above recommendations were made. She will be reassessed in one month in this office. The EEG (Electroencephalogram) recommended by Dr. Gama was obtained on November 9, 1998, and read as abnormal. Specifically, the EEG report noted: This EEG is abnormal because of mild background disorganization which was seen bilaterally but more prominently over the right hemisphere, especially in the frontal region. This finding suggest[s] a diffused cerebral dysfunction such as seen in mild encephalopathy. In addition, a structural lesion in the right hemisphere cannot be excluded. Thalya was next seen by Dr. Gama on December 7, 1998. The results of that examination were reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P [status post] Bacterial Group B Streptococcal Meningitis. Hypotonia. Developmental delay. Abnormal EEG. * * * Comments: . . . Thalya continues to be active. She is feeding well and gaining weight properly. She is making more cooing sounds and attempting to roll over, but she has not been successful in this area. Her examination demonstrates that her head circumference is 42cm. She is alert. She follows the examiner. Her pupils are equal and reactive. Face is unremarkable. She does seem to stick her tongue out intermittently. The motor examination demonstrates that she has decrease traction and head control for her age. She also has a tendency to keep her hands fisted, but this is only intermittently. She does not reach for objects yet. She is unable to hold weight in her lower extremities. Muscle tone seems to be slightly decreased in the axial musculature in particular. Therefore, it is my recommendation that we proceed with an MRI of the brain to rule out structural abnormalities of the right hemisphere.1 In addition, we have discussed the treatment with Phenobarbital. This should be continued for at least six months before making any further recommendations . . . She will be reassessed in this office in 1-2 months. Dr. Gama's next neurological examination of Thalya occurred on January 12, 1999, and was reported as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P bacterial group B streptococcal meningitis. Hypotonia. Improving. Borderline developmental delay. Abnormal EEG * * * Comments: Thalya is doing extremely well. She is getting physical therapy twice a week and making progress. She is more attentive. She follows the examiner in a 180 degree range. She has good social skills. Anterior fontanel is soft. Head circumference is 44cm which is slightly above the 90th percentile, but she has been growing parallel to this with no problems. Cranial nerve examination is unremarkable. Motor examination demonstrates that she is unable to put weight in lower extremities, otherwise, she moves all extremities spontaneously. Deep tendon reflexes were unremarkable. No obvious pathological reflexes were elicited during today's visit. Muscle tone was normal to low. Denver Developmental Screen test reveals that she seems to be appropriate for her age in most of the areas. However, she is unable to roll over but she is showing some attempts to do this. The rest of the examination was noncontributory. Thalya was last seen by Dr. Gama on April 29, 1999, and he reported the results of that follow-up neurological examination as follows: Diagnosis: Seizure disorder. Stable on Phenobarbital. S/P Bacterial Group B Streptococcal Meningitis. Hypotonia. Improved. Comments: Thalya continues to do extremely well, with no recurrent seizures. She is tolerating the medication properly . . . . The patient continues to make progress in her development. The examination today demonstrates that her head circumference is 46.7cm. She is maintaining this in the 90th percentile. She has no obvious focal or lateralizing deficits. Her muscle tone has improved considerably and she is gaining milestones appropriately. She was felt to be at her age level in most of the areas tested . . . . Thalya's subsequent neurologic development was followed by Joseph A. Cimino, M.D., a board-certified pediatric neurologist. Dr. Cimino reported the results of his first neurological examination by October 15, 1999, as follows: DIAGNOSES: 1) GBS meningitis/sepsis. Neonatal seizures. Static encephalopathy with motor and language delay. * * * DEVELOPMENTAL HISTORY: The history is obtained from the parents. The child rolled from front to back at 7 months, back to front at 8 months, sat at 7 to 8 months, crawled at 11 months. She was getting in to sitting at 10 to 11 months, pulled to stand at 12 months, began to cruise at 13 months, is not yet walking independently, says mama but not specifically, does not say dada nor does she wave hi or bye. She began physical therapy at 3 months of age and this was initially twice a week and 1 month ago was decreased to once a week. She is not in speech therapy, although the family states the EIP evaluation at 10 months showed she had a receptive language at 4 months. The concern is that audiological evaluation have shown some missed frequency hearing deficit. * * * PHYSICAL EXAMINATION: The head circumference is 48 1/4 cms which is between the 75th and 98th percentile for chronologic age of 14 months. GENERAL EXAM: On inspection this is a well- nourished, healthy youngster who is alert and attentive. The abdomen was soft and nontender without organomegaly. The cardiovascular exam revealed regular rate and rhythm and no murmurs were appreciated. No cranial bruits are noted. The extremities were normal. The lungs were clear to auscultation. The skin exam was without café au lait spots or hypopigmented macules. The spine was without hair tufts or dimpling. In observing this child crawl and again reaching for objects I did not see any focality, nothing to suggest an old infarction which may be a complication of neonatal bacterial meningitis. In addition a CT scan was reported as negative. NEUROLOGICAL EXAM: The child is very social and attentive with good reciprocal play with a puppet. She smiled quite easily. Although with hands-on evaluation she did become irritable and cried. Assessment of tone was quite difficult. She tracked very nicely with full extraocular movements no ophthalmoparesis or nystagmus. The pupils were equal and reactive to light and facial movements were symmetric. I was not able to get an adequate look at the fundi. Corneal reflexes were intact. With regards to the motor exam, she reached quite nicely for objects without preference. She in fact did crawl well, transitioned into a sitting position but did W sit, usually associated with low muscle tone. With hands-on exam it was very difficult as she was crying and had a lot of active resistance to know exactly the status of her tone. She pulls to stand with a mature pattern with hip flexion. She sat quite nicely with her back straight, able manipulate objects. She did not slip through my grip on vertical suspension. Her deep tendon reflexes were 2/4 and symmetric in both the upper and lower extremities. The sensory exam was grossly intact to pain. IMPRESSION: GBS meningitis/sepsis . . . early onset. Neonatal seizure without recurrence, successfully tapered off of Phenobarbital. Prematurity 36 weeks gestation. Language delay. I think at 13 months adjusted age she should be saying mama and dada specifically, have more jargoning, waving hi and bye, and say several other words in addition to mama and dada which are used specifically. There is clearly risk of hearing deficit given meningitis and the use of Gentamicin and this child needs to be followed closely. History of motor delay. Clearly rolling at 6 months adjusted age is delayed. Sitting at 6 to 7 months adjusted age is normal, the family gave a chronologic age of 7 to 8 months but at 36 weeks gestation it is fair to make a 1 month adjustment which I am assuming they would do at EIP. She began to cruise at 13 months chronologic age which is 1 year. Her adjusted age is now 13 months and clearly walking independently can be normal up to 18 months at the outside limits. She appears to be making nice improvement in this area . . . . Thalya was next seen by Dr. Cimino on May 1, 2000, and most recently on November 10, 2000. Dr. Cimino reported the results of his most recent follow-up examination as follows: DIAGNOSES: 1) GBS meningitis. Neonatal seizures. Prematurity 36 weeks gestation Language delay. CLINICAL HISTORY: This is a 2 year old female seen in follow up on 5/1/2000. At that time she was having episodes of spacing out. We obtained an EEG that was normal for the awake and sleep state. Because of the GBS meningitis and developmental delay we obtained an MRI also done in September that was normal. She underwent a speech evaluation on 6/23/2000 that showed auditory comprehension at 9-12 months, verbal expression at 6-9 months. Impression was overall global delay and she has been in speech therapy twice a week at Brook's Rehab. Her chronologic age at the time of the evaluation was 22 months. At this time she began to walk at 15 months. She says mama and specifically, dada non- specifically. She will repeat words but does not have a lot of spontaneous words. She does wave hi and bye. PHYSICAL EXAMINATION: The head circumference is 50 1/4 cms which is between the 75th and 98th percentile. This continues to grow at the same rate. She is crying and extremely uncooperative. She is very frightened by many of her past appointments. She did track, had full extraocular movements without nystagmus or ophthalmoparesis. Her facial movements do appear sysmetric. Tone is low even with her resisting. She ran to her mother, I did not see any abnormalities. Her gait certainly was not wide based. She seemed to get off the floor well. Her sensory exam was grossly intact to pain. The deep tendon reflexes were difficult due to her withdrawal. IMPRESSION: Status-post Group B strep neonatal meningitis with neonatal seizure without recurrence. Language delay. Most likely reflecting sequela of the meningitis. There is a good percentage of these children who do have severe deficits. However, the EEG and MRI did not show any abnormalities. There is no slowing of the background activity and no decrease or delay in myelination reported on the MRI. PLAN: . . . Continue speech therapy . . . Reassess in 6 months. The cause of Thalya's neurologic dysfunction Regarding the cause of Thalya's neurological dysfunction, the proof is compelling that during labor and delivery Mrs. Greene was vaginally infected with Group B Streptococcal (GBS), that during delivery the infection was transmitted to Thalya, and that over the next 24 to 48 hours the infection process rapidly progressed causing meningitis and the resultant brain injury. Consequently, it may be said that Thalya's neurologic dysfunction is associated with a brain injury caused by meningitis (an inflammation of the membranes that envelop the brain and spinal cord), secondary to a GBS infection acquired during the birthing process (most likely subsequent to rupture of the membranes and during the course of delivery). The dispute regarding compensability As a touchstone to resolving the dispute regarding compensability, it is worthy of note that the Plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined "birth-related neurological injury." Under the Plan, a "birth-related neurological injury" is defined as: [I]njury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. Section 766.302(2), Florida Statutes. Here, there is no serious dispute that Thalya is neurologically impaired or that such impairment is attributable to a brain injury caused by the infection process discussed infra. Rather, what is at issue is whether the cause of Thalya's brain injury and the nature of her impairment fit the narrowly defined term "birth-related neurological injury." In this regard, it is Intervenor's view that Thalya's brain injury (occasioned by an infectious process) may reasonably be described as having been "caused by mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," and that such injury rendered her "permanently and substantially mentally and physically impaired." Conversely, Petitioners and Respondent are of the view that that the cause of Thalya's brain injury was not a "mechanical injury," and that she was not rendered "permanently and substantially mentally and physically impaired." Of the two, Petitioners' and Respondent's view is by far the more compelling. The nature and timing of Thalya's injury To address the nature and timing of Thalya's injury, the parties offered the opinions of three physicians: Charles Kalstone, M.D., a physician board-certified in obstetrics and gynecology; Joseph Cimino, M.D., a physician board-certified in pediatric neurology; and James Perry, M.D., a Fellow of the American Academy of Neurology. (Joint Exhibits 2-4). Notably, these physicians shared strikingly similar views, and were of the opinion that Thalya's brain injury was caused by infection induced meningitis, a process distinguishable from an injury caused by oxygen deprivation or mechanical injury. Stated otherwise, the physicians were of the opinion that Thalya's injury could not reasonably be described as having been caused by oxygen deprivation or mechanical injury.2 Given the plain and ordinary meaning of the words used in the term "mechanical injury" (as physical harm or damage caused by machinery, tools, or physical forces), their conclusion was most reasonable.3 Consequently, it is resolved that Thalya's brain injury was not caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Thalya's current mental and physical presentation At hearing, the only authoritative proof offered with regard to Thalya's current mental and physical presentation was the testimony of Dr. Cimino, Thalya's pediatric neurologist. It was Dr. Cimino's opinion that while Thalya may evidence substantial cognitive impairment, she does not evidence substantial physical impairment. Such opinions are grossly consistent with the record and are credited.
The Issue At issue in this proceeding is whether Sarah Massey, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental Findings Gina R. Massey and James Massey, are the parents and natural guardians of Sarah Massey (Sarah), a minor. Sarah was born a live infant on March 14, 1993, at St. Joseph's Women's Hospital (St. Joseph's), a hospital located in Tampa, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Sarah was Steven Ira Arkin, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Massey's antepartum course and Sarah's birth At the time of Sarah's birth, Mrs. Massey was 28 years of age, and Sarah was to be her first child. Her estimated date of confinement was established as March 20, 1993, and her pregnancy was uncomplicated. On March 13, 1993, Mrs. Massey started to experience contractions, and at or about 7:00 p.m. her membranes spontaneously ruptured. Following her physician's advice, Mrs. Massey presented to St. Joseph's Women's Hospital at or about 9:00 p.m. By 5:30 a.m., March 14, 1993, Mrs. Massey's cervix had dilated to four centimeters; however, she failed to progress and at approximately 8:00 a.m. Pitocin was started. Thereafter labor continued, but without progress, until 9:20 a.m., at which time Pitocin was discontinued and Dr. Arkin decided, for reasons hereafter discussed, to proceed with a caesarean section. Pertinent to this case, starting at 5:30 a.m., March 14, 1996, and extending until delivery, the fetal heart rate was monitored by fetal scalp electrode. Such monitoring revealed, overtime, repetitive variable and late decelerations; a reflection of fetal stress. Based on such indicia of fetal distress and Mrs. Massey's failure to progress, Dr. Arkin elected to proceed by caesarean section. Mrs. Massey was taken to the operating room at 9:30 a.m., anesthesia was started at 9:35 a.m., and surgery commenced at 9:56 a.m. At 10:01 a.m., Sarah was delivered. Upon delivery Sarah breathed spontaneously, and did not require resuscitation. The delivery record reveals no abnormalities observed at birth; however, Sarah was noted to have a temperature of 102.5 degrees. Her Apgar scores were noted as 8 at one minute and 9 at five minutes. Such scores are considered good or normal. 3/ Sarah was transferred to the well baby nursery at 10:20 a.m. where, upon admission she was noted to exhibit grunting and nasal flaring, as well as a continued pale color and poor lung exchange of air. By 10:50 a.m. Sarah's color had improved; however she continued to grunt intermittently. Considering Sarah's presentation, the initial concern was of infection, given the mother's and child's elevated temperatures at birth, as opposed to hypoxic insult. Consequently, Sarah was placed on a seven-day regimen of antibiotics as a precautionary measure. 12. During the 11:00 p.m. (March 15, 1996) to 7:00 a.m. (March 16, 1996) shift, Sarah exhibited some right-sided twitching consistent with seizure activity. Following such report, initial physical examination by her treating physician failed to observe any jitteriness; however, questionable eye deviation to the left was noted. Consequently, an electroencephalogram (EEG) and cranial ultrasound were ordered, and a neurologic consult was placed. The EEG of March 16, 1993, was abnormal, and demonstrated active electrical seizure activity in the left hemisphere. The cranial ultrasound of the same date likewise demonstrated an abnormality. That study found: . . . There is an echogenic, amorphous area located within the left basal ganglion region. . . . The findings are nonspecific, but given the presentation and age of the infant, a hemorrhage would be most likely. No germinal matrix, hemorrhage or abnormality is seen and no periventricular white matter abnormality is seen to suggest hypoxic/ ischemic brain injury. Of note, color Doppler ultrasound of the area was performed, and no abnormal vascularity to the echogenic area was seen. This would support a hemorrhage over a tumor . . . since no vascularity was seen. Still, computer tomography of the head is recommended to further evaluate this abnormality if appropriate. No other abnormalities are seen. The brain is structurally normal. The ventricles are normal in size. Conclusion: Amorphous, echogenic mass in the left lentiform nucleus and external capsule region which most likely represents an intracerebral hemorrhage. Computer tomography at some point is recommended. No other abnormalities are seen. No germinal matrix abnormality, ventricular enlargement, or evidence of hypoxic/ischemic injury to the periventricular white matter is seen. Sarah was transferred from the well baby nursery to the neonatal intensive care unit (NICU) at approximately 3:00 p.m., March 16, 1993. Following admission, a brain CT scan was ordered. The brain CT scan of March 16, 1993, revealed extensive low attenuation throughout the left cerebral hemisphere, including the basal ganglia, suggesting a large cerebrovascular accident (CVA). No significant midline shift was observed, and no hemorrhage was seen to correlate with the echogenic area observed on the ultrasound performed earlier that day. Neurologic consult was of the impression that Sarah had a seizure disorder, probably secondary to an intra-uterine CVA, and a mild right-sided hemiparesis. Sarah was begun on Phenobarbital and her seizures were well controlled. Following the seven day regimen of antibiotics heretofore noted, Sarah was believed stable, and on March 21, 1993, she was discharged to the care of her parents. The ultimate neurologic result of Sarah's intra- uterine CVA (stroke) was a mild right-sided hemiparesis, evidenced by spastic weakness primarily of her right arm; however, there is also some diminution of motor function in Sarah's right leg. As for her mental status, Sarah's mental functioning currently appears age appropriate and, although it cannot be conclusively stated at this juncture in her life, it appears more likely than not that she has not suffered any diminution of cognitive function. The timing and cause of Sarah's intra-uterine CVA Although the medical records indicate that during labor Sarah underwent fetal stress, as evidenced by fetal heart decelerations, the proof fails to support the conclusion that those events contributed to her neurological deficits. Rather, the proof, as demonstrated by Sarah's presentation at birth, relatively stable condition during hospitalization, and radiological studies, indicates that Sarah's neurological impairments derive from an intra-uterine stroke which significantly predated the onset of labor, as opposed to hypoxic insult during the course of labor or delivery. Apart from Sarah's presentation and progress during hospitalization, the radiological studies, done within two days of her birth, provide compelling proof as to the nature and timing of her injury. First, such studies do not demonstrate evidence of an acute brain injury which could have occurred during the course of labor and delivery. In this regard, it is observed that there was no evidence of edema (a condition of swelling which accompanies an acute brain injury) and no evidence of a recent (acute) hemorrhage (the presence of blood). Second, the area of diffuse low attenuation observed on radiologic study was most likely a presentation of dead or injured brain cells in the area of the hemorrhage which had undergone organic changes over time, and could properly be described as presenting in a chronic state (persisting over a long period of time), as opposed to acute. Finally, the focal nature of Sarah's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. In this regard, it is noted that hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Sarah suffered, with a resultant effect, to varying degrees, on all neurologic function, as compared to the limited neurologic loss Sarah suffered. Given the record, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that the cause of Sarah's brain injury and her ensuing neurologic impairment was an intra- uterine stroke, which predated labor by as much as one week, is credited as most consistent with the proof. Likewise credited, based on the consistency of his testimony with the proof of record, is Dr. Duchowny's opinion that Sarah's physical impairment can best be described as mild, as opposed to substantial, and that she evidences no loss of cognitive function.
