Findings Of Fact Dream was born on February 14, 2018, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Dream. In a medical report dated October 8, 2019, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at about 33 weeks for preclampsia. FHR tracing during labor did not suggest any significant fetal distress. Delivery was by Cesarean section. Umbilical cord blood gas pH was within normal limits at 7.12. There was no seizure activity noted after delivery. No EEG or head imaging studies were done during the newborn hospital course. The child suffered brain injury at some time prior to the MRI at 11 months of age, which was consistent with encephalmalacia. However, the brain injury does not appear to be birth related. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, deliver or the immediate post-delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Dream and to review his medical records. Dr. Duchowny examined Dream on November 26, 2019. In a medical report dated November 27, 2019, Dr. Duchowny summarized his examination of Dream and opined, in pertinent part, as follows: In summary, Dream’s evaluation reveals findings consistent with a substantial mental and motor impairment. The evidences spasticity and hyperreflexia of all extremities, a profound delay in motor milestones and absence of meaningful communication. He also has oromotor dysfunction and a borderline right exotropia. Review of medical records forwarded on November 12, 2019 reveal that Dream was the 2900 gram product of a 34 week gestation complicated by insulin-dependent gestational diabetes, polyhydramnios, pregnancy-induced hypertension and pre-eclampsia. He was delivered by Caesarian section because of worsening pre- eclampsia and non-reassuring fetal heart tones. Dream was a large-for-gestational-age neonate and had Apgar scores of 6 and 7 at one and five minutes. His neonatal course was prolonged although he remained on CPAP for only one day. A brain MR imaging performed on January 14, 2019 (age one month) revealed bilateral multifocal cystic periventricular leukomalacia. Given Dream’s relatively stable intrapartum and postnatal care, I would like to review Dream’s brain imaging before making a final recommendation regarding acceptance to the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his neurological evaluation of Dream, following the review of brain imaging studies. Dr. Duchowny and Dr. Willis conferred regarding Dream’s medical records and current neurological status as well. In his February 14, 2020, addendum, Dr. Duchowny opined: It is our combined opinion that the findings on re- review do not support the presumption that Dream’s severe neurological outcome and MR imaging abnormalities were acquired in the course of labor, delivery or the immediate post-natal period as a result of either oxygen deprivation or mechanical injury. 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 to Dream’s brain during labor, delivery, and the post-delivery period, which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dream should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinion in an affidavit dated April 17, 2020. Dr. Duchowny reaffirmed his opinion in an affidavit dated April 17, 2020.
Findings Of Fact Amy Nicole Alvarez was born on June 16, 2010, at Jackson South Community Hospital in Miami, Florida. Michael S. Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Amy and to review her medical records. Dr. Duchowny examined Amy on July 2, 2014. In an affidavit dated September 22, 2014, Dr. Duchowny reported his findings and gave the following opinion: In summary, Amy’s neurological examination today reveals mild right spastic hemiparesis, speech dysarthria and a complex visual agnosia. She additionally evidences microcephaly. Although I am concerned about Amy’s overall cognitive development due to her microcephaly, she appears to be progressing satisfactory and is making progress with respect to verbal communication both in the receptive and expressive domains. Her visual impairment is likely to be centrally-based. I had an opportunity to review Amy’s medical records. It contained information that is consistent with Amy’s overall history but I have not reviewed Amy’s brain MRI scans. However, in view of Amy’s relatively good mental development and only mild degree of motor impairment, I would not recommend inclusion within the NICA program. As such, it is my opinion that AMY NICOLE ALVAREZ is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of AMY NICOLE ALVAREZ. (Emphasis in original.) A review of the file does not show any contrary opinion, nor was any potential contrary expert disclosed during the telephone hearing on the Motions for Summary Final Order. The opinion of Dr. Duchowny that Amy does not have a permanent and substantial mental or physical impairment is credited.
The Issue At issue in this proceeding is whether Adam Joseph Balash, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Evan Balash and Terry Balash are the parents and natural guardians of Adam Joseph Balash (Adam), a minor. Adam was born a live infant on November 5, 1991, at Palms West Hospital, a hospital located in Palm Beach County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Adam were Robert Chaitin, M.D., and Ronald Ackerman, M.D., who 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. Mrs. Balash's antepartum course and Adam's birth Mrs. Balash's antepartum course was without apparent complication until November 5, 1991, when, with the fetus at 37 weeks gestation (estimated date of confinement November 20, 1991), she presented to her obstetrician/gynecologist. At the time, examination was reassuring with fetal movement and a fetal heart rate of 136 beats per minute; however, Mrs. Balash reported decreased fetal movement over the last few days. Consequently, she was referred to Palms West Hospital for a non- stress test (NST). Mrs. Balash presented to Palms West Hospital at or about 2:00 p.m. (1400 hours), November 5, 1991, and was placed on a fetal monitor for the NST at or about 2:04 p.m.3 Fetal heart rate (FHR) baseline was noted at 150 beats per minute and continued at that rate until about 2:25 p.m. when a period of bradycardia was shown to develop, down to approximately 90 beats per minute, and persist for approximately 5 minutes, with a return to baseline.4 Reassuringly, beat-to-beat variability and reactivity to Doppler were present, and no further episodes of bradycardia were noted during the course of Mrs. Balash's labor and delivery.5 Given the prolonged deceleration noted on the NST, Mrs. Balash was admitted to labor and delivery at 2:30 p.m. Vaginal examination revealed the cervix to be at 2-3 centimeters, effacement at 80 percent, and the fetus at station -2,6 with contractions at 1 to 2 minutes. Mrs. Balash complained of abdominal tenderness, and the abdomen palpated firm. No vaginal bleeding was noted. Dr. Chaitin was advised of Mrs. Balash's status, and intravenous (IV) fluids and lab work were ordered. At 3:00 p.m. the FHRs were noted as 140s, without accelerations, and at 3:20 p.m. vaginal examination revealed no change or progress. Dr. Chaitin was updated. At 3:34 p.m. Mrs. Balash was attended by Dr. Chaitin. His examination noted the fetus at station -3; however, dilation remained at 2 centimeters. The uterus was noted to be "rock hard without any relaxation," a presentation consistent with placental abruption. Consequently, Dr. Chaitin ruptured the membranes, yielding bright red amniotic fluid (further evidence of placental abruption).7 Internal fetal monitor was placed, revealing FHRs of 140s, with good variability and no decelerations.8 The fetus was noted to be in frank breech presentation. Given the evidence of fetal stress and probable placental abruption, Dr. Chaitin opted for a stat (immediate) cesarean section. Between 3:40 p.m. and 3:54 p.m., Mrs. Balash was prepared for surgery, anesthesia was started, and she was moved to the operating room. According to the labor and delivery summary, she was in the operating room at 3:55 p.m., the incision was made at 3:56 p.m., and Adam was delivered at 3:57 p.m., November 5, 1991. Pertinent to this case, the operative report reads as follows: . . . The uterus was noted to be rock hard in all quadrants. A low transverse incision was made with a scalpel. The uterine incision was extended bilaterally. The fetal breech was noted to be in frank breech position and with care, the butt was delivered and both arms were reduced appropriately. The fetal head was then removed, the baby was well bulb suctioned, and started crying extremely vigorously. [Infant dried and provided whiffs of oxygen, but no resuscitation required.] Cord was clamped, and neonatology present and baby evaluation was normal. A 6 pound, 12 ounce, baby boy was born with Apgar's 8/9. The cord ph was obtained which was 7.322 [normal]. The placenta was actively delivering, and was found to be 40% abrupted and was sent to pathology for evaluation. . . . The Apgar scores assigned to Adam 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, gag reflex, 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 Adam's Apgar score totalled 8, with heart rate, respiratory effort, muscle tone, and gag reflex being graded at 2 each, and color being graded at 0. At five minutes, his Apgar score totalled 9, with heart rate, respiratory effort, muscle tone, and gag reflex being graded at 2 each, and color being graded at 1. Such scores are grossly normal, as were Adam's newborn assessments, and he was admitted to the newborn nursery for routine care. (Petitioners' Exhibit 5, tabs 4 and 8). At approximately one hour of life (5:00 p.m.), Adam was observed to have turned dusky. One hundred percent oxygen via mask was applied, and Adam's color improved. Heart rate and respiratory rate were noted as stable. Adam was subsequently attended by Dr. Lerma Te, who noted nasal flaring, grunting, and retraction. Dr. Te's impression was "respiratory distress" and "rule out sepsis." Blood cultures were ordered, and intravenous Ampicillin and Claforan were started. Adam developed increasing oxygen requirements and at or about 6:40 p.m. he was intubated and assisted ventilation was begun. X-rays revealed "homogenous bilateral extensive ground glass appearance of the air bronchograms." Impression was that "[t]his either represents transient respiratory distress syndrome in the newborn or hyaline membrane disease."9 Given Adam's needs, he was transported to Good Samaritan Hospital, where he was admitted to the neonatal intensive care unit (NICU) at or about 10:25 p.m. Notably, notwithstanding his respiratory problems, Adam's neurological status remained essentially normal throughout his hospital stay. On November 20, 1991, Adam was discharged, in apparent good health, to his mother's care. His course at Good Samaritan Hospital noted no neurological problems, and is summarized on his discharge summary as follows: HISTORY: Mother is a 27 year old gravida 2, para 1, blood type 0 negative. Admitted at 37 weeks gestational age with abruptia placenta. Stat cesarean section was done and the baby was in breech position with Apgar score of eight and nine at one and five minutes respectively. Weight 2920 grams. The baby developed respiratory distress with increasing FI02 requirement. He was intubated and assisted ventilation started. Blood cultures were done. Intravenous Ampicillin and Claforan were started and the baby was transferred to Good Samaritan Hospital from Palm West. PHYSICAL EXAMINATION: Baby's weight 2920 grams, heart rate 156, respiratory rate 60, blood pressure 65/38. Premature 37 week male infant in respiratory distress. Head and Face: Anterior fontanelle flat. Oral cavity: No cleft plate noted. Chest: The baby is on assisted ventilation. Air entry heard both sides. Cardia: Heart sounds normal. Abdomen is soft. Umbilical cord has two vessels. Genitalia: Male. Extremities: No click at the hips. Central nervous system: Tone and reflexes equal on both sides. ASSESSMENT: Premature 37 weeks. Respiratory distress. Maternal complications, abruptia placenta. Cesarean section delivery. Suspected sepsis. Maternal history of herpes. HOSPITAL COURSE: Complete blood count, blood cultures x 7 were done. The baby continued on intravenous Ampicillin, endotracheal tube and cultures were sent for herpes. Umbilical catheter was inserted through the umbilicus about nine centimeters. He was started on Exosurf. The baby remained on assisted ventilation from 11/5 through 11/10/91 and was extubated on 11/10 and placed on Oxy-Hood. The baby was weaned from oxygen to room air by 11/18/91. The baby was also noted to be jaundiced and was started on photo therapy on 11/9/91 and was discontinued on 11/11/91 when the bilirubin declined. Echocardiogram done on 11/7/91 revealed moderate size patent ductus arteriosus and the baby was given Indocin and the patent ductus closed after the Indocin. The baby was on Ampicillin and Claforan for suspected sepsis and this was discontinued after a course of antibiotics of seven days. The baby was started on feedings on 11/18/91 and was advanced and IV's decreased. The baby tolerated adequate amounts of feedings and tolerated feeds well. The baby was discharged home at fifteen days of age when the baby weighed 6 lbs. 7.6 oz., was clinically stable and tolerating feedings well. DISCHARGE DIAGNOSIS: Premature 37 weeks male. Respiratory distress syndrome. Patent ductus arteriosus. Hyperbilirubinemia. Suspected sepsis. DISCHARGE PLAN: To be followed by Dr. Marineau in one week and Dr. Friedman for eye examination on 12/11/91. Brain stem auditory evoke potential examination to be done on 12/5/91 at Good Samaritan Hospital. Cranial ultrasound on 11/6 showed no evidence of [hydrocephalus or] intracranial bleeding. Adam's development Adam's early infancy was apparently unremarkable, and no problems were observed until approximately eight to ten months of age. At that time, developmental delay became evident and the parents reported their concerns to Adam's pediatrician, who referred him for neurologic consult at the Palm Beach Neurological Group.10 Adam was examined by a Dr. Mate, at the Palm Beach Neurological Group, in 1992; however, those observations are not of record. What is of record are the observations of Luis Bello-Espinosa, M.D. (Dr. Bello), another neurologist associated with the Palm Beach Neurological Group, who first examined Adam in April 1994. Dr. Bello describes Adam's presentation as consistent with severe cerebral palsy (profound brain dysfunction), that is characterized by spastic quadriparesis (an abnormal motor development affecting all four extremities) and mental retardation. Here, there is no dispute that Adam's impairments, mental and physical, are permanent and substantial. In an effort to identify the etiology of Adam's dysfunction, he was referred to Paul J. Benke, M.D., for genetic consultation. The results of Dr. Benke's first consultation were reported on November 2, 1993, as follows: DIAGNOSTIC IMPRESSION: Chromosome Anomaly. GENETIC COUNSELING: The developmental delay, now performing at 11-12 months, is probably related to the chromosome anomaly. It could not be determined today whether the neonatal problems played a role. One cell strain, the 20 deletion with 2 normal 7 chromosomes, is probably derivative from the dominant strain with the apparently balanced translocation. This would mean that the translocated #7 broke and lost most of the translocated #20, or far more likely, the whole chromosome was lost, the normal #7 was duplicated, and the 2 #7 chromosomes are derived from 1 parent. Blood was taken today to see if 1 parent is a translocation carrier. A skin biopsy, with a presumably higher proportion of 20 p- cells, would be required to determined (sic) why the translocated 7 was lost. Dr. Benke recommended follow-up studies. The results of Dr. Benke's follow-up studies were reported on October 1, 1994, as follows: This boy . . . [has] a mosaic chromosome abnormality . . . We did a skin biopsy months ago to determine the proportion of cells with a derivative chromosome 20, partial trisomy 7 and deletion 20. Most of the sample (29/30) cells had the balanced 7:20 translocation, with the deriviative (sic) 20 in just 3 percent. This suggests also that the balanced translocation was probably the first genetic lesion. Compounding conclusions of etiology for slow development is that a new balanced translocation leads to slow development and birth defects 7-10 per cent of the time. Also, the derivative 20 chromosome could be responsible since the neurons with this anomaly may function poorly. Also, he had a delay in his C-section of more than one hour when there was a demonstrable disruption of the placenta, associated with attendant neonatal problems. It is tough to say which of the factors is most responsible, but I think that the balanced translocation is the least important. Interestingly, children with chromosome 20 deletion are not particularly dysmorphic, but are delayed, and have some findings similar to those found in Adam. . . . In sum, Dr. Benke's conclusion was that Adam suffered a chromosonal abnormality known as a balanced translocation affecting approximately 3 percent of his cells. This genetic abnormality generally does not lead to any clinical problems; however, in 7 to 10 percent of the cases involving this type of translocation there may be genetic predisposition to decreased neurological development or birth (genetic) defect. The dispute regarding compensability Here, it is not subject to serious debate that the cause of Adam's neurologic impairment is associated with brain dysfunction or anomaly.11 What is at issue is the cause and timing (genesis) of that anomaly (encephalopathy)12 or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that Adam's neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation13 . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis. Section 766.302(2), Florida Statutes. With regard to such issue, Petitioners contend that Adam suffered an hypoxic event, consequent to the stresses of labor (placental abruption and uterine hypertonicity), which caused a microscopic brain injury, and that such injury was the cause of Adam's neurologic impairment. In contrast, Respondent contends the proof is not consistent with hypoxic ischemic injury occurring during the course of childbirth, and, therefore, Adam's disorder must be attributable to some other etiology. Respondent's view of the proof has merit. The genesis of Adam's brain anomaly To address the genesis of Adam's brain anomaly, the parties offered selected medical records relating to Mrs. Balash's antepartum and intrapartum course, as well as for Adam's birth and subsequent development. Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of five physicians as to the likely cause of Adam's birth disorder. The physicians selected by Petitioners were Paul J. Benke, M.D., a board certified clinical and biochemical geneticist; Luis J. Bello, M.D., a board certified neurologist; and, Barry D. Chandler, M.D., a board certified neonatologist. The physicians offered by Respondent were Charles Kalstone, M.D., a board certified obstetrician and gynecologist; and Lance E. Wyble, M.D., a board certified neonatologist. The medical records and other documentary proof, as well as the testimony of the physicians offered by the parties, have been scrutinized. So considered, it must be concluded that the proof does not allow a conclusion to be drawn with any sense of confidence, that, more likely than not, Adam's brain anomaly was associated with an injury caused by oxygen deprivation during labor, delivery, or resuscitation in the immediate post- delivery period, as opposed to some other etiology.14 In reaching the foregoing conclusion, neither the evidence of placental abruption nor fetal stress during labor has been overlooked. However, while the presence of such factors could lead one to assume a connection and attribute Adam's anomaly to hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, an examination of the clinical data and observations suggests that such would be a speculative and unlikely explanation for Adam's presentation. In so concluding, it is observed that Adam's course pre-delivery and post-delivery was inconsistent with hypoxic or ischemic injury having occurred during the course of birth. First, the evidence documenting fetal heart rate during the course of labor and delivery, particularly when compared with Adam's post-delivery presentation, does not support the conclusion that Adam suffered an acute intrapartum event that led to an hypoxic or ischemic injury. Notably, there was only one event of fetal heart rate deceleration and overall the monitoring tape was reassuring. Under such circumstances, it is unlikely that the partial abruption Mrs. Balash suffered adversely affected fetal oxygenation during labor and delivery. Further militating against the conclusion that Adam's anomaly was caused by oxygen deprivation during the course of labor and delivery are the numerous inconsistencies between Adam's presentation and the clinical findings one would expect had he suffered hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, during that period. Notably, had such an event occurred, one would reasonably expect a severely depressed infant on delivery, with an absence of respiratory effort; a depressed cord pH; and the onset of seizure activity during the neonatal period. Here, Adam was alert and active on delivery, with good respiratory effort; his Apgars were normal, as were his newborn assessments; his cord pH was normal; and no seizure activity was noted in the neonatal period. Also of note, within approximately 24 hours of birth, Adam was administered a cranial ultrasound, which proved negative for hemorrhage and edema. Edema is a clinically anticipated consequence of neurological injury, and is anticipated within 6 to 12 hours of the event. Subsequent brain studies (MRIs), at or about 11 and 18 months of age, were also read as normal or, stated differently, failed to reveal global or bilateral injury generally associated with hypoxic ischemic encephalopathy. Finally, had Adam suffered an hypoxic ischemic event during birth, one would reasonably expect damage to multiple organ systems. Included would be the kidneys, bone marrow, the liver, and the heart. Here, Adam's creatine levels and urine output remained normal throughout the neonatal period, indicating that his kidneys were not subjected to an acute hypoxic event. Additionally, Adam evidenced no myocardial injury, and his bone marrow reflected no evidence of lymphocrytosis, which one would anticipate had there been an acute hypoxic event.15 Finally, Adam's first CBC (complete blood count) at Palms West Hospital indicated an extremely elevated level of nucleated red blood cells, which would be consistent with the presence of a chronic injury, as opposed to an acute insult. Given the proof, it cannot be concluded that, more likely than not, Adam's brain disorder and resulting neurologic impairment was associated with a brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Notably, Adam's presentation at birth and his neonatal course were not consistent with an acutely acquired neurological injury, and it is improbable that he could have experienced an acute injury during labor and delivery without evidencing a single clinical symptom of such damage. Conversely, the existence of a prenatally acquired (predating labor and delivery) brain disorder (whether genetically or otherwise based) would be consistent with Adam's presentation at birth and during the neonatal period.
Findings Of Fact Landon Pillow was born on November 29, 2010, at North Florida Regional Medical Center in Gainesville, Florida. Landon weighed 3,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Landon, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows: In summary, there was a non-reassuring FHR pattern during labor. It is unlikely this resulted in any significant oxygen deprivation to the fetus, based on a cord blood gas pH > 7.0 and a normal newborn hospital course. Babies with birth related hypoxic brain injury will generally have multi-organ failures during the newborn period. 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 reviewed additional medical records on January 16, 2014, and, based on his review of those records, opined as follows: The additional records do not change any of my opinions concerning this case. The child suffered a brain injury, but the etiology is still undetermined. Based on the cord blood gas pH > 7 and a normal newborn hospital course after delivery, it does not seem reasonable to time the brain insult as birth related. NICA retained Michael S. Duchowny, M.D., to examine Landon and to review his medical records. Dr. Duchowny examined Landon on April 30, 2014, and gave the following opinion: In summary, Landon’s neurological examination today was extremely limited because of his postictal state. However, there were no specific focal or lateralizing findings despite the history of a left hemisphere infarct and porencephalic cavity. A review of medical records sent on February 26, 2014 confirms the history obtained today which revealed no evidence of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery, or the immediate postnatal period. Landon’s cord blood pH was 7.25 and the base excess was -4. Both values are near-normal. Although the neurological examination was suboptimal, the history obtained today from the family and from medical records indicate that Landon’s neurological impairment was acquired prenatally. I therefore believe that he should not be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny that there was no obstetrical event that resulted in injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. Their opinions are credited.
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 Ryan was born on September 4, 2015, at Central Florida Regional Hospital, in Sanford, Florida. The physician providing obstetric services and who was present at Ryan’s birth was Dr. David Teitelbaum. At the time of Ryan’s birth, Dr. Teitelbaum was a NICA participating physician. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Ryan’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In a report dated April 5, 2018, Dr. Willis concluded the following: In summary, labor was complicated by a non- reassuring FHR pattern requiring emergency Cesarean section delivery. The baby was depressed at birth with Apgar scores of 2/2/4. Resuscitation included chest compressions for 2 minutes, intubation and intravenous fluid bolus. Cooling protocol was initiated. The newborn hospital course was complicated by multi-system organ failures, including respiratory distress, hypotension, coagulopathy and elevated liver function studies. Despite the clinical findings of birth related hypoxia, only the initial EEG showed mild encephalopathy, which normalized. No abnormalities were reported on brain MRI’s after birth and at 6 months of age. There was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation would have been expected to result in some degree of brain injury. Attached to Respondent’s Unopposed Motion for Summary Final Order is the affidavit of Dr. Willis, dated June 27, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that there was a clinically apparent obstetrical event that resulted in oxygen deprivation during labor, delivery, and continuing into the post-delivery period. Respondent also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Ryan’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Ryan’s father and family members, and conducted an IME of Ryan on November 22, 2017. Dr. Sigurdardottir’s IME report provides, in part, as follows: Summary: Patient is a 2-year-old male with history of being born via an emergency C- section after normal uncomplicated pregnancy. Apgar scores were low: 2 whole body cooling was performed at Florida Hospital at 1 minute, 2 at 5 minutes, 4 at 10 minutes and 6 at 15 minutes. And patient had neurologic sequelae including a cognitive impairment autistic features. Despite having early motor delays, he is currently ambulatory. Result as to question 1: Ryan is found to have substantial delays in mental abilities but mild delays in motor abilities at this time. Result as to question 2: In review of available documents there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation. Result as to question 3: The prognosis for full motor recovery is good but mental recovery is unlikely and need for vast therapies to improve his language development and decrease autistic features is needed. His life expectancy is excellent. In light of evidence presented, I believe Ryan does not fulfill criteria of both substantial and mental and physical impairments at this time. I do not feel that Ryan should be included in the NICA program for that reason. Respondent’s Unopposed Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated June 25, 2018. In her affidavit, she opines, based upon her education, training and experience, and to a reasonable degree of medical probability, that Ryan “has substantial delays in mental abilities,” however, “he has only mild delays in motor abilities.” A review of the file reveals no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
The Issue At issue in this proceeding is whether Cassidy Taylor Shiver, 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 Kellie Dawn Shiver and Robert L. Shiver are the parents and natural guardians of Cassidy Taylor Shiver (Cassidy), a minor. Cassidy was born a live infant on November 5, 1996, at DeSoto Memorial Hospital, a hospital located in Arcadia, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during Cassidy's birth was Dumitru-Dan Teodoreseu, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Cassidy's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition. Cassidy's neurologic status On January 7, 1999, following the filing of the claim for compensation, Cassidy was evaluated by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny chronicled Cassidy's history and the results of his examination as follows: I evaluated Cassidy Shiver on January 7, 1999. Cassidy is a 2 year old girl who comes for an evaluation of developmental problems. Cassidy was accompanied by her mother and maternal grandmother. HISTORY ACCORDING TO THE FAMILY: The family began by explaining that Cassidy's seizures are her main ongoing problem. She had her last seizure several weeks ago and is now taking phenobarbital 20 mg b.i.d. Her seizure onset was at 2 months of age. She has essentially had persistent seizures, except for a 6 month seizure free interval. Each episode lasts approximately 1 to 2 minutes and typically occurs 15 to 20 minutes after falling asleep. Cassidy experiences the rapid onset of tonic and subsequently clonic movements primarily involving the upper extremities. They are associated with loss of consciousness and foaming at the mouth. She has a period of postictal depression before regaining normal baseline status during daytime attacks. Cassidy was allegedly the product of a 32 weeks gestation, born with the birth weight of 5-pounds, 9-ounces. The delivery was by a vacuum extraction and left Cassidy with a large right cephalohematoma. There was a significant collection of blood which ultimately "ruptured". Mrs. Shiver indicated that Cassidy experienced damage to both frontal lobes which was documented on both CT and MRI studies. Despite Cassidy's stormy neonatal course, her growth and development have proceeded reasonably well. She walked at 16 months and said single words at 22 months. She is not yet potty trained. Cassidy is fully immunized, has no known allergies and has never undergone surgery. She sporadically sees physical and occupational therapist, but Mrs. Shiver's [sic] performs the therapies at home. Cassidy has made a remarkable recovery, in that her motor function is essentially within the normal range with the exception of a minor arm asymmetry and with decreased left swing. Cassidy is quite curious and socially engaging. Her vision and hearing are said to be adequate and there has been no deterioration in her overall developmental level. PHYSICAL EXAMINATION today reveals Cassidy to be alert and cooperative. The skin is warm and moist. Her hair is blonde and of normal texture. Cassidy's head circumference measures 50.2 cm which is within standard percentiles. The anterior and posterior fontanelles are closed. There are no significant cranial or facial asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGICAL EXMINATION reveals Cassidy to be alert, curious and slightly overactive. She does participate in the examination fully and is socially engaging. Cassidy maintains central gaze fixation and demonstrates conjugate following movements. The pupils are 4 mm and react briskly to direct and consentually presented light. There are no fundoscopic abnormalities. The tongue and palate move well. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness. The gait is stable with an arm swing that indeed shows some posturing of the left arm. This is minimal however and does not affect Cassidy's stance or balance. She demonstrates good dexterity with both hands and has a well developed fine motor coordination for age. She uses both hands in a coordinated fashion. The deep tendon reflexes are 2+ and symmetric with flexor plantar responses. There is no evidence of gait, truncal or extremity ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory examination is deferred. Cassidy did not speak in words or sentences at any time during the evaluation, but tends to verbalize consonants only. In SUMMARY, Cassidy's neurologic examination reveals evidence of an expressive language delay and a minor non-functional asymmetry of upper arm swing on her gait. Otherwise, Cassidy appears to be developing well and is being managed appropriately for her seizure diathesis. In Dr. Duchowny's opinion, which is credited, Cassidy is not currently substantially physically impaired and, notwithstanding any events which may have occurred at birth, is not likely to be so impaired in the future. 1/ (Respondent's Exhibit 1, pages 8, 9, and 11.)
Findings Of Fact Maximilian was born on October 26, 2017, at Winnie Palmer Hospital, located in Orange County, Florida. According to the medical records from Winnie Palmer Hospital, Maximilian weighed four pounds and three ounces, or 1900 grams, at birth.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. 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. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. 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 Xavier has developed well and does not evidence neurodevelopmental delay 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 Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
