The Issue At issue is whether Daniel Irchai, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Stipulated facts Petitioners, Arnold Irchai and Irina Irchai, are the natural parents and guardians of Daniel Irchai, a minor. Daniel was born a live infant on February 14, 2003, at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Daniel's birth was Richard Brazzel, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioners are of the view that Daniel suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Daniel did not suffer a "birth-related neurological injury" since the proof failed to support the conclusion that, more likely than not, Daniel suffered a brain injury "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period" in the hospital and, regardless of the etiology of Daniel's brain injury, he was not rendered "permanently and substantially mentally and physically impaired." Daniel's birth and postnatal course At approximately 10:00 a.m., February 14, 2003, Mrs. Irchai was admitted to North Florida Regional Medical Center for an elective repeat cesarean section. According to the hospital records, pre op was complete at 11:00 a.m., Mrs. Irchai was moved to the operating room at 11:45 a.m., anesthesia was started at 11:50 a.m., surgery was started at 12:14 p.m., and Daniel was delivered, with vacuum assist, at 12:26 p.m. Of note, the records reveal maternal hypotension after the spinal anesthesia, with some fetal bradycardia before delivery, and at least three attempts with the vacuum extractor before Daniel was delivered. Following delivery, Daniel was slow to respond, and was "vigorus[ly]" stimulated and administered blow-by oxygen for 15 minutes. Apgar scores were recorded as 6 and 8, at one and five minutes, respectively,3 and cord pH was recorded as 6.89. Physical examination by Dr. Burchfield, the neonatalogist present at delivery, noted breath sounds with fine crackles, as well as intermittent grunting. At 12:41 p.m., Daniel was transported to the special care nursery where, at 12:45 p.m., he was assessed for abnormalities. Admission assessment was grossly normal, except for apparent respiratory problems, with evidence of slight nasal flaring, grunting, mild subcostal retractions, and diminished breath sounds. A cephalhematoma was also noted.4 Daniel initially responded well to blow-by oxygen, but grunting worsened and a stat consultation by neonatology was requested. On arrival at 1:50 p.m., Dr. Burchfield's physical examination revealed retractions, grunting, rales bilaterally, good skin perfusion, and open and flat fontanelle. Dr. Burchfield's impression was probable transitory tachypnea of the newborn (TTN), and his treatment plan included hood oxygen, IV fluids, blood cultures, and antibiotics (Ampicillin and Gentamicin). The nurses' progress notes reveal that between 3:00 p.m., and 3:40 p.m., Daniel continued under the oxygen hood, but was very fussy, and on one occasion was noted to secrete approximately 5 cc of blood from his mouth. The progress notes further reveal that between 3:40 p.m., and 3:50 p.m., when Dr. Burchfield was paged, Daniel was placed on NCPAP, and blood secretions from his mouth continued. Dr. Burchfield described the events in his progress notes, as follows: I was paged at 3:50 p.m. to say that this baby had vomited bright red blood [BRB] - baby's respiratory distress worsened & NCPAP started. OG placed & copious BRB came up. Baby had an estimate of 10-15 cc of blood. Upon arrival [at approximately 4:20 p.m.] baby was on NCPAP . . . . I intubated [with] 3.5 ET - initially no blood in ET. Attempt to place UAC unsuccessful. During this attempt, blood came up ET tube requiring suction. UVC placed & VBG sent, Coags sent (no heparin in line) & emergent T&C . . . . Imp[ression] - UGI bleed [hemorrhage] - ? sepsis . . . . P[lan] - Transfer to Shands UF Peds. Surgery Consult (already contacted ) ? Coags (pending) Stat T&C for transfusion Daniel was transferred to Shands at the University of Florida, where he was admitted at approximately 6:30 p.m. Following admission, the neonatalogist admission note, prepared by Dr. Burchfield, documented the presence of fresh blood in the ET tube and that "a subgaleal hemorrhage was becoming evident." Dr. Burchfield's impression was diffuse hemorrhagic disease of the newborn5; coagulopathy6; respiratory distress; pulmonary hemorrhage; suspect sepsis; and fetal distress. Dr. Burchfield's treatment plan was FFP 10 cc/kg; blood transfusion; NPO/IVF; antibiotics; and follow up with coagulation studies "to see if FFP corrects, [and] if it does, consider further deficiency." At 11:45 p.m., Dr. Burchfield made the following progress note: Baby is critically ill [with] evidence of bleeding diathesis —bleeding from GI track, lung, scalp. Emergency head US showed no bleed earlier this evening, but fontanelle is more tense now, so will repeat in a.m. Fibrinogen[7] was very low -26. This improved to 90 [with] FFP. Coags improved somewhat [with] FFP also . . . . Baby is having frequent desats and some posturing -its unclear if this is occluded ET and he's fighting, or if he is having seizures. We have given a dose of Ativan. This severe hypofibrinogenemia may be due to Liver disease 2) Congenital deficiency of Factor I 3) DIC [disseminated intravascular coagulation].[8] We have sent LFT's to rule out #1). Platelet count is not extremely low, as one would see [with] DIC. Now that FFP is given, we can't accurately obtain other factor levels to study DIC (Factors V, VIII). We will give some cryoprecipitate to bring fibrinogen higher. On February 15, 2003, David Suhrbier, D.O., a pediatric neurologist, examined Daniel. Dr. Suhrbier summarized Daniel's history and his impressions, as follows: CHIEF COMPLAINT: Seizure activity and abnormal CT of the brain. HISTORY OF PRESENT ILLNESS: Baby boy Irchai is a one-day-old Caucasian male who was referred from North Florida Regional Medical Center due to respiratory distress requiring intubation and the development of hematemesis[9] and hemoptysis.[10] Upon arrival the infant demonstrated evidence of disseminated hemorrhage disorder of the newborn manifested by a subgaleal hematoma, continued hemoptysis from the ET tube, hematemesis from the OG tube and coagulopathy evaluation demonstrating thrombocytopenia,[11] decreased fibrinogen and prolonged PT measurement. The infant received fresh frozen plasma and red blood cells. Ampicillin and Gentamycin were initiated for potential septic etiology. Chest x-ray demonstrated evidence of bilateral "ground glass" appearance consistent with respiratory distress syndrome. Initial head ultrasound was unremarkable for intraventricular hemorrhage. Infant shortly after arrival . . . began to manifest paroxysmal spells of desaturation associated with tonic posturing of the extremity which was presumed to be seizure activity. The infant was treated with two doses of IV Ativan. Head CT demonstrated evidence of both intra-axial as well as extra-axial blood products. Review of the study demonstrates the presence of a cerebellar hematoma with mass-effect upon the fourth ventricle resulting in ventriculomegaly of the third and lateral ventricles. Subarachnoid blood is also noted along both tentorial planes. Intraparenchymal hemorrhages are noted, as well as a large subgaleal hemorrhage. The infant received a 10 mg/kg bolus of IV Phenobarbital. No further seizure activity has been witnessed since the administration of the Phenobarbital. * * * OBJECTIVE: . . . HEENT: No dysmorphic features, large right parietal cephalohematoma, anterior fontanel elevated, pulsatile. Sutures minimally displayed. OFC 37 cm. Pulmonary: Breath sounds equal bilaterally. Lung fields clear to auscultation . . . . . Neurologic: Mental status: Infant somnolent (however the infant has received two doses of Ativan and loading dose of Phenobarbital). Cranial nerves: Pupils equal, round, and reactive to light. Infant attempted to squeeze eyes shut in response to light stimulus. Deep tendon reflexes 2+ in the upper and lower extremities. Motor: Minimal spontaneous movement of the extremities upon stimulation. With cotton tip applicator the infant demonstrated the ability to flex arms against gravity. Withdrew lower extremities. IMPRESSION: Neonatal seizures. Cerebellar hematoma, subarachnoid hemorrhage, and intraparenchymal hemorrhage. Obstructive Hydrocephalus due to cerebellar hematoma. RECOMMENDATIONS: Follow OFC measurements on a daily basis. Carefully monitor infant for symptoms of Cushing's triad. Repeat CT of the brain in 24 hours. Maintain Phenobarbital on minimal maintenance dosing 3 mg/kg/day. Electroencephalogram on Monday. Should Phenobarbital fail, consider adjunctive Fosphenytoin. During the course of his admission at Shands, Daniel underwent multiple radiological studies, with the last study, a cerebral CT, performed February 25, 2003, approximately 10 days prior to his discharge. That study, performed to evaluate for interval changes from the previous study of February 17, 2003, was read as follows: The previous study demonstrated hemorrhage in the fourth ventricle, paramesencephalic cisterns, and right cerebellum with subarachnoid blood in the right sylvian region. A large cephalohematoma over the right posterior scalp at the high convexity was also present. The current exam demonstrates expected evolutionary changes of blood products. The region of hemorrhage shows decreased density from prior in the paramesencephalic cisterns and the right cerebellum. The subarachnoid blood at the right sylvian fissure is also decreased in density. The scalp hematoma also is decreased in density. There are no new regions of hemorrhage. The ventricles remain midline. They are enlarged but unchanged from prior. Again noted is transependymal fluid migration that is similar when compared to prior study. No new regions of hemorrhage are seen. IMPRESSION: Expected evolution of blood products in the previous regions of intracranial hemorrhage and scalp hematoma. Persistent hydrocephalus that is unchanged from the prior exam. No new regions of hemorrhage are seen. On March 6, 2003, Daniel's condition was stable, and he was discharged to his parents' care. Primary diagnosis on discharge was consumptive coagulopathy (DIC), and secondary diagnoses and complications were noted as ventriculomegaly/hydrocephalus, seizures, cerebellar hemorrhage, intracranial hemorrhage, and extracranial hemorrhage. Follow-up appointments were scheduled or recommended with Pediatric Neurosurgery, Pediatric Neurology, and Daniel's pediatrician (John Hellrung, M.D.). Daniel's subsequent development Following discharge, Daniel did follow-up with Pediatric Neurosurgery, with his last visit on April 9, 2003. At that time a CT scan was performed, which showed decreased ventricular size and resolution of the intracranial hemorrhage. Pediatric Neurology recommended monitoring of head circumference, and Daniel was placed on an as needed status for return to the clinic. Following discharge, Daniel also followed-up with Pediatric Neurology, with his first visit on May 15, 2003. At that time, Daniel was examined by Paul Carney, M.D., a pediatric neurologist, who reported the results of his evaluation to Daniel's pediatrician (Dr. Hellrung), by letter of the same date, as follows: Daniel Irchai was seen in the Pediatric Neurology Clinic this morning accompanied by his parents. As you know, he is a three- month-old who had an intracranial hemorrhage at birth, as well as a large right parietal cephalohematoma. He was last seen as an inpatient during his stay in the NICU. Pediatric Neurology was initially consulted as he experienced some abnormal posturing and possible seizure activity during his first week of life. He was loaded with Phenobarbital and has been maintained on Phenobarbital routine dose since that time . . . . Since his discharge, the Irchais have not noticed any seizure activity, no episodes of loss of tone, abnormal posturing, eye deviation or tonic/clonic activity. They are very eager to see if Phenobarbital can be weaned off as they are concerned how this is impacting his development. It is for this reason that they present in clinic today. * * * Developmental History: Now at three months, Daniel is noted to be awake and alert. He has had no difficulty tolerating the Phenobarbital therapy. He smiles, he is not a fuzzy [sic] baby, no irritability noted. He does respond to mom. What mom does report is that he, if looking straight on him, Daniel will smile, coo and interact. However, if she is away from him and she calls to him no matter what method she uses, he will not turn his head to find her. He has never done this. She does report that he is trying to hold his head up, has not rolled over completely yet, he does [12] with kicking and moving all extremities equally. When placed on his stomach, he will make attempts to lift his head up but does not get it completely up, will remain with his cheeks to the side, does appear to bring his knees up to try to move and will attempt to push up lifting the chest but does not completely make it. His appetite is good, he is breast-fed. He does not have any problems with choking, spitting up, drooling or controlling his secretions. * * * Review of Systems: Negative for nausea, vomiting, diarrhea, no fever, no seizures noted, no change in tone, no altered level of consciousness, staring or deviations of the eyes and generalized tonic/clonic activity. Appetite is good. He is breast- fed only, has been growing well. No recent colds, no past infections. Physical Exam: On exam today, . . . height was 61.5 cm, weight was 6.11 kg, head circumference 39.5 cm. Today he was plotted out compared to birth at two months and at three months and he is following a nice curve right below the 50th percentile for age . . . . Neurologically, Daniel was awake and alert. He had a social smile, would seem to track but would not turn his head to voice. He was examined initially supine. Anterior fontanel open, flat, soft. Face was symmetric. His tongue was midline, palate was symmetric. He had a good suck. Pupils were equal, round and reactive to light with accommodation. A red reflex was noted on funduscopic exam. He did have moderate head lag when raised to the seated position. He had strong finger grasps bilaterally. Supine, he was moving all extremities vigorously. Reflexes were 2+ on bilateral upper extremities, 3+ bilateral lower extremities but he did have a plantar grasp when toes were downgoing. He had a positive Moro. He did have decreased central tone, increased ventral suspension but otherwise had a nonfocal exam. No clonus was noted, no tremor was noted. * * * Plan: Today we have spent a great deal of time with the Irchais going over all the scans that have been done, his head plot and his neurological exam of today. We feel optimistic that Daniel will do well overall. We have reviewed the EEG that was completed as an inpatient with them. In light of the fact that he has not had any other further clinical events and has continued to make some strides despite having some of the motor that we are noting today, we feel it is reasonable to begin a slow Phenobarbital taper. It may be that the hypotonic features we are seen in his exam may be related to Phenobarbital therapy. We have given them instructions to wean by half a cc every week until he is off, this will take approximately seven weeks. If after his Phenobarbital has been tapered to off, Daniel continues to show some hypotonicity, it would be reasonable to start occupational and physical therapy at that time. We would like him to have a followup head MRI to be completed in the next three to four months to give them a better idea as to if any scarring or atrophy remains from his initial bleed . . . . As requested, Daniel had a follow-up head MRI on September 8, 2003. The results of that study were reported by the attending radiologist, as follows: Encephalomalacic changes with almost complete destruction of the upper vermis is present. Old blood products are present as well at this site which are also seen on diffusion weighted imaging as dark signal in the poster fossa. There is no evidence of vascular malformations. Otherwise, the brain density is appropriate for a young child. Brain formation is normal. Myelination is appropriate for age with evidence of myelination in corticospinal tracts, visual pathways and corpus callosum. Ventricular size and sulcal pattern are within normal limits. No evidence of acute hemorrhage. IMPRESSION: Encephalomalacia changes with old blood products in the posterior fossa as above. No evidence of vascular malformation. Daniel's next evaluation by Dr. Carney, and his most recent, was on September 18, 2003. Dr. Carney reported the results of that evaluation, as follows: I had the pleasure of seeing Daniel today in the Pediatric Neurology on followup. As you know, he is a 7-month-old boy who has a history of neonatal seizures secondary to a cerebellar hematoma with intracranial bleed and cephalohematoma[.] [W]hen I last saw him on 05/18/03 [sic] . . . [h]e was doing quite well. He had no recurrent seizures at that time therefore, the Phenobarbital was tapered and discontinued. At today's visit, his parents report that he is doing quite well. He has good head control if sitting with minimal support. His tracking laterally and vertically to mom's voice, dad's voice as well as to face and object recognition. He is cooing. They are concerned that he has had some head bobbing which on further questioning sounds like mild titubation. He has had no developmental regression. No seizures since I last saw him. He underwent a followup brain MRI which demonstrated a superior vermis encephalomalacic abnormality secondary to his neonatal intracranial hemorrhage. Ventricular sizes were not dilated nor were the basilar cisterns, and the third and fourth ventricles appeared open and patent. There were no recurrent bleeds, nor was there brain atrophy or cerebellar hemispheric atrophy. * * * Physical Examination: Weight 8.19 kg, head circumference 43 cm (50th percentile), height 73 cm, . . . . He was awake, alert, tracked laterally to moving object. He had good neck tone. When placed on his abdomen, he lifted his head and held it in a erect position for more than two minutes. He would sit with minimal support. He had no axial slippage. Resistance to passive manipulation was normal in both upper and lower extremities. Deep tendon reflexes were 2+ at the biceps, triceps, brachioradialis, knees and ankles. Optic discs were pink and flat. I saw no retinal abnormalities. No drooling. Tongue at the midline, palate rose symmetrically, cooed throughout the examination. General physical examination no adenopathy or thyromegaly. Chest clear to auscultation. Heart sounds were regular rate and rhythm without murmurs. Abdomen soft without signs of hepatosplenomegaly, abdominal masses, no skin rashes were noted. Genitalia - normal male. Assessment and Plan: A 7-month-old boy with neonatal cerebellar hemorrhage as outlined above and post hemorrhage encephalomalacic defect. Developmentally he has made good progress. For the most part, he is on track with the exception of some head titubation. His parents are very much interested in pursuing physical therapy and therefore, I am recommending this at this time. He will have a followup brain MRI in six months and will see me in clinic thereafter . . . . Following discharge from Shands, Daniel received routine care from his pediatrician, Dr. Hellrung, with his first visit on March 10, 2003, at 3 weeks of age, and his last visit on May 12, 2004, at 15 months of age. Dr. Hellrung's records do not reveal any significant findings or observations that are pertinent to this case, but do document, as noted by Petitioners in their proposed final order, "tremor of head," and that as of May 12, 2004, Daniel showed evidence of a delay in gross motor development, since he did not yet "Walk[] alone, stoop[], recover[]," and a delay in language development, since he was "not [yet] talking." On June 2, 2004, following the filing of the claim in this case, Daniel was, at Respondent's request, examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny reported the results of his neurologic examination, as well as his review of Daniel's medical records, as follows: I evaluated Daniel Irchai on June 02, 2004. The evaluation was performed at Miami Children's Hospital. Both parents were in attendance and supplied historical information. HISTORY ACCORDING TO MR. AND MRS. IRCHAI: Daniel is a 15-month-old boy who suffers from developmental delay. The parents indicated that Daniel is not yet walking or talking and has very poor balance. He has just started to stand while holding on but seems "wobbly." He is unable to walk independently. They note no present changes in his muscle tone, although his mother felt that he may have been excessively loose several months ago. Parents also indicated that Daniel's head may shake in a side-to- side manner when he is in the sitting position. This is particularly evident when he is reaching. They believe that these movements have diminished somewhat over the last several months. * * * Daniel is sociable and plays well with his older brother. He does not drool except while teething. There has been no behavioral regression. Daniel has recently been evaluated for physical therapy at the "Kids on the Move" Program. He has not yet been scheduled for a routine physical therapy exercise regime. Daniel's health is otherwise good. His vision is normal, although the left eye will occasionally "move up under the eyelid" on directed right gaze.[13] Daniel's hearing is good and his appetite has been stable. He is on no intercurrent medications but did take phenobarbital for the first five-months of life. * * * Daniel rolled over at four-months and sat at eight-months. He began standing with support at thirteen-months but cannot walk independently or talk in words. He is not yet toilet trained. Daniel is fully immunized and has no known allergies. He has never undergone surgery or been hospitalized after the neonatal period. * * * PHYSICAL EXAMINATION reveals an alert, well- developed and well-nourished 15-month-old boy. Daniel weighs 23 pounds. The hair is blond and of normal texture. The eyes are blue. There is a nevus flammeus below the occipital hairline. There are no other cutaneous markings and no dysmorphic features. The head circumference measures 46.1 centimeters, which approximates the 20th percentile for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular examination reveals normal heart sounds and the lung fields are clear. The abdomen is soft and non-tender. There is no palpable organomegaly. Peripheral pulses are 2+ and symmetric. NEUROLOGICAL EXAMINATION reveals an initially quiet infant sitting in his father's lap. However, Daniel is quite fearful and defensive and began crying inconsolably when approached. He did not speak in words at anytime during the evaluation but at least initially followed simple commands. Cranial nerve examination reveals full visual fields to direct confrontation testing and normal ocular fundi, which were seen only briefly. The pupils are 3 mm and react briskly to direct and consensually presented light. No facial asymmetries. The tongue and palate move well. The uvula is midline. Motor examination reveals mild generalized hypotonia for both axial and appendicular musculature. There were no tremors or evidence of adventitious movements. Daniel's head control was stable. Daniel is able to stand with minimal support but is unable to take steps independently. He did not fall. The deep tendon reflexes are slightly exaggerated at 2-3+ bilaterally. Plantar responses are downgoing. There are no pathological reflexes. Sensory examination is intact to withdrawal of all extremities to stimulation. Neurovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Daniel's neurologic examination reveals very slight delays in motor and language development with excessive behavioral irritability. He demonstrates no findings to suggest structural brain damage and his seizures are in complete remission. A review of Daniel's medical records further indicates that Daniel's postnatal circumstances did not result from intrapartum oxygen deprivation or mechanical injury . . . . The cause and timing of Daniel's brain injury, as well as the significance of Daniel's impairment Given Dr. Duchowny's opinion that "Daniel's neurologic evaluation reveals very slight delays in motor and language development," and the absence of any contrary opinion or facts of record that would compel a contrary conclusion, it must be resolved that Daniel suffers neither a substantial mental impairment nor a substantial physical impairment, much less a permanent and substantial mental and physical impairment as required for coverage under the Plan. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.") Moreover, given Dr. Duchowny's opinion "that Daniel's postnatal circumstances did not result from intrapartum oxygen deprivation or mechanical injury," and the absence of any contrary opinion or facts of record that would compel a contrary conclusion, it must be resolved that the proof fails to support the conclusion that Daniel's deficits resulted from a brain injury that occurred during labor, delivery, or resuscitation, as opposed to some other etiology (i.e.: the bleeding he experienced postdelivery). See Thomas v. Salvation Army, supra; Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("[T]he oxygen deprivation or mechanical injury to the brain must take place during labor or delivery, or immediately afterward . . . . The fact that a brain injury from oxygen deprivation could be traced back to a mechanical injury outside the brain resulting in subgaleal hemorrhaging does not satisfy the requirement that the oxygen deprivation or mechanical injury to the brain occur during labor or delivery.") Consequently, the proof failed to support the conclusion that, more likely than not, Daniel suffered a "birth- related neurological injury," as defined by the Plan.
Findings Of Fact D’Taveus Drummond was born on September 3, 2010, at Heart of Florida Regional Medical Center located in Davenport, Florida. D’Taveus weighed more than 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for D’Taveus to determine whether an injury occurred 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 medical report dated May 12, 2015, Dr. Willis described his findings in part as follows: Spontaneous vaginal delivery was complicated by a shoulder dystocia. Birth weight was 3,766 grams or 8 lbs 5 oz’s. The baby was depressed at birth, but responded quickly to resuscitation. There was no respiratory effort at birth. Apgar score at one minute was 5. Bag and mask ventilation was given for one minute and an injection of narcan was given to reverse the respiratory depression effects of narcotics given during labor. The baby responded to resuscitation efforts and the Apgar score was 8 by five minutes. The baby did not move the right arm after birth. Erb’s palsy was diagnosed. Otherwise, the newborn hospital course was uncomplicated and the baby was discharged home with the mother two days after birth. MRI of the spine at 4 months of age identified a traumatic neuroma of the right, but no abnormalities of the cervical spine. MRI of the brain was normal. Nerve graph was done at about 6 months of age. Neurology evaluation at that time stated the child was developmentally on target at 6 months of age. In summary, delivery was complicated by a shoulder dystocia and resulting brachial plexus injury. The baby did not have problems related to birth hypoxia. Newborn course was complicated only by the brachial plexus injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated December 11, 2015. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine D’Taveus and to review his medical records. Dr. Sigurdardottir examined D’Taveus on November 4, 2015. In an affidavit dated February 19, 2016, Dr. Sigurdardottir opined as follows: Summary: Here we have a 5-year 1-month old boy with known shoulder dystocia leading to right bracial plexopathy which occurred at birth. He has required multiple procedures to address his traumatic neuromas as well as increase his functional ability but yet has significant disability in the functional abilities of his right upper extremity. There is no history given or relayed to us regarding his mental abilities, but on observation during his visit, he is noted to be verbal and have no clear major mental impairment. Result as to question 1: The patient is found to have mild or no mental impairment. * * * In light of the above-mentioned details including his normal or near normal mental capacity and limited motor disability to his upper extremity, I do not recommend D’Taveus to be included into the Neurologic Injury Compensation Association (NICA) Program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that D’Taveus has mild or no mental impairment with normal to near normal mental capacity. Dr. Sigurdardottir’s opinion is credited.
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 On July 13, 2011, a "Petition Under Protest" styled "Milvia Najera and Marvin Chavarria, on behalf of and as parents and natural guardians of Marvin Chavarria, a minor v. Florida Birth-Related Neurological Injury Compensation Association," was filed with the Division of Administrative Hearings (DOAH). Pertinent to the pending motions are the allegations of paragraphs 3, 4, 5, 6, and 7 of the petition: * * * Name and Address of Physician The physicians providing obstetrical services who were present at the birth are Resident Lucia Gaitan, M.D. and Attending Samir N. Beydoun, M.D. . . . Description of Disability It is alleged that Marvin Chavarria currently suffers from developmental delay. Time and Place of Birth Jackson Memorial Hospital,[2/] 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Time and Place of Injury Jackson Memorial Hospital, 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Statement of the Facts This claim is not compensable under NICA as Marvin Chavarria's injury does not meet the definition of a birth-related neurological injury as defined in Florida Statute 766.302(2). The reasons for non- compensability are as follows: The child does not have substantial physical and mental impairments as defined by Florida Statutes 766.302(2). * * * The Petition does not allege a lack of notice by the healthcare providers.3/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 5, 2011; served Dr. Beydoun and Jackson Memorial Hospital, respectively, on July 16, 2011; and served Dr. Gaitan on or about July 21, 2011. Upon appropriate petition and an August 16, 2011 Order, Samir Beydoun, M.D., was granted Intervenor status. On October 13, 2011, after one extension of time in which to do so, NICA filed its response required by section 766.305(4), titled "Notice of Non-Compensability and Request for Evidentiary Hearing." On October 24, 2011, Respondent NICA filed its Motion for Summary Final Order, with supporting affidavits. The thrust of Respondent's motion is that the petition for benefits was filed with DOAH on July 13, 2011, which is more than five years past the birth of the child, Marvin Chavarria, who was born on February 5, 2005. The motion states, "Accordingly, the claim is barred as a matter of law, and cannot qualify for an Award under the NICA Plan. . . . Notwithstanding, the issue of compensability must be addressed." Respondent also submitted, with its Motion for Summary Final Order, two medical affidavits to the effect that the claim is not compensable. On October 24, 2011, Petitioners filed a Notice of Joinder in Respondent's Motion for Summary Final Order. On October 27, 2011, Intervenor Samir Beydoun, M.D., filed a Response in Opposition to Respondent's Motion for Summary Final Order. On October 26, 2011, Intervenor Samir Beydoun, M.D., also filed a Motion for Summary Final Order, asserting that the Administrative Law Judge has jurisdiction to enter a summary final order solely determining that Petitioners' claim is barred by section 766.313, the statute of limitations for NICA claims. On October 28, 2011, Petitioners filed a Response and Objection to Intervenor's [Beydoun's] Motion for Summary Final Order, to which Response and Objection, Intervenor Beydoun filed an unauthorized Reply, on November 8, 2011. By Order of November 18, 2011, a pending Petition to Intervene, filed on October 24, 2011, by Public Health Trust of Miami was granted,4/ and, in an abundance of caution, this new Intervenor was given until November 30, 2011, to file a response to the two pending motions for summary final order. Public Health Trust of Miami filed no timely response(s), but joined in Dr. Beydoun's Motion by an untimely and unauthorized "Notice of Joinder" filed December 13, 2011; a Response Opposing [NICA's] Motion for Summary Final Order, filed December 13, 2011; and an "Amended" Motion for Summary Final Order filed December 14, 2011. All of the pleadings have been considered. NICA's Motion for Summary Final Order alleged that the claim against NICA is barred by the statute of limitations for NICA claims.5/ The birth certificate, which was filed with the Petition, confirms Marvin's date of birth as alleged in the Petition as February 5, 2005. No party has asserted otherwise. There also is no dispute that the Petition (claim) was filed on July 13, 2011. Therefore, there can be no reasonable debate that the NICA claim was filed more than five years beyond Marvin's birth date, and so, the claim is barred as a matter of law, and cannot qualify for an award under the NICA Plan. NICA's Motion for Summary Final Order further alleged that Marvin's claim is not compensable because he did not suffer a "birth-related neurological injury" as defined in section 766.302(2), first, because there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or the immediate postdelivery period, and secondly, because Marvin does not suffer from a substantial motor (physical) impairment, both of which are elements of the definition of a compensable injury, at section 766.302(2). (See Conclusion of Law 32). Attached to NICA's Motion for Summary Final Order was an affidavit by Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis rendered the following opinion within a reasonable degree of medical probability: * * * In summary, baby was delivered with some mild respiratory distress that required bag and mask ventilation for about 30 seconds. Arterial blood gas was normal. The respiratory distress resolved without the need for intubation or mechanical ventilation. A tight Nuchal cord was present at birth, but did not result in oxygen deprivation. 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. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery [sic] in the Hospital that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord. Accordingly, there was no causal event which would have rendered MARVIN CHAVARRIA permanently and substantially mentally and physically impaired as a result of same. (emphasis added). Also attached to NICA's Motion for Summary Final Order was the affidavit of Michael S. Duchowny, M.D., a board- certified pediatric neurologist, who rendered the following opinion within a reasonable degree of medical probability: * * * The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology in the above-styled matter to examine the minor child, MARVIN CHAVARRIA, and review the medical records from both MARVIN CHAVARRIA and his mother, MILVIA NOTERA. [sic] The purpose of my review of the medical records and evaluation of MARVIN CHAVARRIA was to determine whether he suffers from an injury which rendered him permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. I evaluated MARVIN CHAVARRIA on October 5, 2011. A true and accurate copy of my Evaluation and Opinion is attached hereto as Exhibit 1. . . . My Opinion is reflected in my Report and is as follows: In SUMMARY, Marvin's neurological examination today reveals findings consistent with autism and pervasive developmental disorder (PDD). He has severe social and behavioral problems and also manifests expressive language delay, generalized hypotonia and has a history of a sleep disorder. There are no focal or lateralizing findings noted. I reviewed medical records that were sent on August 16, 2011. The records do not contain information that points to either an hypoxic event or mechanical injury in the course of labor or delivery. Marvin was born at term at Jackson Memorial Hospital and had Apgar scores of 9, 9 and 9 at 1, 5 and 10 minutes. Although he did have a tight nuchal cord, it was removed immediately. The postnatal course was unremarkable. Marvin's diagnostic studies further confirm that his neurological disabilities are developmentally based and likely the result of problems in brain maturation which began in utero. The physical examination today provides additional confirmation that Marvin does not suffer from a substantial motor impairment. For the above reasons, I do not believe that Marvin should be considered for compensation under the NICA statute. [6/] (emphasis added). Intervenor Beydoun's Response to NICA's Motion for Summary Final Order urges the granting of NICA's motion to the extent the claim is barred by the statute of limitations, but also urges denial of NICA's motion "because the ALJ cannot reach the question of compensability where, as here, the claim is barred by the statute of limitations.7/ Intervenor Beydoun has also filed a Motion for Summary Final Order asserting the same arguments in favor of dismissal under the statute of limitations and against dismissal upon grounds of non-compensability, because, he argues, once the statute has run, the Administrative Law Judge is without jurisdiction to determine either compensability or notice. Intervenor Public Health Trust has joined in Dr. Beydoun's Motion for Summary Final Order, and filed a Response to Motion for Summary Judgment and an Amended [sic] Motion for Summary Final Order.8/ Petitioners joined in NICA's Motion for Summary Final Order and oppose Intervenor Beydoun's Motion for Summary Final Order. It may be assumed they also oppose the Public Health Trust's late-filed items. Despite both Intervenors' opposition upon the issue of the Administrative Law Judge's jurisdiction to enter a summary final order regarding compensability where the statute of limitations for the filing of a NICA claim has run, no one has posed a challenge concerning the sufficiency of NICA's Motion for Summary Final Order's factual allegations or supporting affidavits. Given the record and the medical affidavits, there is no genuine issue of material fact that Marvin, the child named in the Petition, did not suffer a birth-related neurological injury as defined in section 766.302(2). Accordingly, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well- founded.9/
Findings Of Fact Robert Charles Crump was born on August 15, 2009, at Baptist South Hospital located in Jacksonville, Florida. Charlie weighed 2,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Charlie, to determine whether an injury occurred 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 medical report dated September 17, 2014, Dr. Willis described his findings in part as follows: In summary, the mother presented at 34 weeks with premature rupture of the membranes in early labor. Variable HFR [sic] decelerations developed during the last two hours prior to delivery. Cesarean section was done for the non-reassuring FHR pattern. The newborn was depressed. The newborn hospital course was complicated by respiratory depression, hypotension and one episode of apnea. Although the baby was discharged home with a normal exam, MRI at 16 months of age was done for evaluation of a weak left hand and found a prior cerebral stroke. It is likely the baby suffered some degree of oxygen deprivation during labor, delivery and/or in the immediate post resuscitation period. However, it is less clear that any oxygen deprivation during this time period resulted in brain injury. No head imaging studies were done during the newborn hospital course. The child did suffer a stroke, which was documented at 16 months of age by MRI. There was an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby’s brain during labor, delivery and continued into the immediate post delivery period. Without imaging studies during the newborn hospital course, I am unable to determine if this oxygen deprivation resulted in the child’s brain injury (stroke). Pediatric Neurology evaluation would be helpful in this determination. Dr. Willis reaffirmed his opinion in an affidavit dated March 8, 2016. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Charlie and to review his medical records. Dr. Duchowny examined Charlie on November 5, 2014. In a medical report dated November 5, 2014, Dr. Duchowny opined as follows: In summary, Charlie’s general physical and neurological examinations reveal a mild left hemiparesis, notable mainly for asymmetry of movement. His muscle tone is well-preserved and he has full range of movement bilaterally with the exception of full left supination. Charlie is functioning cognitively at age level. He has done remarkably well in his therapies. I reviewed the medical records sent on October 14, 2014. They document Charlie’s birth at 34 weeks gestation at Baptist Medical Center South in Jacksonville following premature rupture of membranes productive of blood-tinged amniotic fluid. Charlie was born by emergent Caesarian section for arrest of descent and presented limp, apneic and cyanotic. Apgar scores were 2 and 7 at 1 and 5 minutes. He was resuscitated via bag and mask and breathed spontaneously at just over 2 minutes. His NICU stay was complicated by apnea and bradycardia which resolved fully and transient respiratory depression. Charlie was never intubated or mechanically ventilated and was maintained on room air from August 17th until discharge on August 24th. No neonatal brain imaging was performed. MRI scan of the brain on February 8, 2011 revealed an old ischemic infarct involving the anterior limb of the right internal capsule. The remainder of the brain was normal. A consideration of the findings from today’s evaluation and record review lead me to recommend that Charlie not be considered for compensation within the NICA program. He has normal mental functioning and a mild motor deficit. Furthermore, his stroke was likely acquired prenatally, and there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. Dr. Duchowny reaffirmed his opinions in an affidavit dated February 24, 2016. 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 an apparent obstetrical event that likely resulted in some degree of oxygen loss to the baby's brain during labor, delivery or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Charlie has normal mental functioning and a mild motor deficit, and that his stroke was likely acquired prenatally. Dr. Duchowny’s opinion is credited.
The Issue At issue is whether Frisline Jeanise Victor, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Marie J. Desir is the natural mother and guardian of Frisline Jeanise Victor, a minor. Frisline was born a live infant on September 7, 1999, at Jackson Memorial Hospital, a hospital located in Miami, Florida, and her birth weight was 3,625 grams (8 pounds, 0 ounces). The physician providing obstetrical services at Frisline's birth was Jerry Gilles, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, it is undisputed that Frisline is permanently and substantially mentally and physically impaired. What remains to resolve is whether her impairments resulted from an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation." Frisline's birth and immediate postnatal course At or about 12:50 p.m., September 7, 1999, Ms. Desir, with an estimated delivery date of September 19, 1999, and the fetus at 38+ weeks gestation, presented to Jackson Memorial Hospital, in early labor. At the time, Ms. Desir's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement at 50 percent, and the fetus out of the pelvis. Uterine contractions were noted as moderate, at a frequency of 5-6 minutes, and external fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 140-beat per minute range. Maternal history during pregnancy was significant for two hospitalizations secondary to uncontrolled diabetes. Ms. Desir was admitted, and examination revealed the baby to be approximately 4,082 grams (9 pounds). Consequently, given the suspected macrosomia (great bodily mass) of the baby, and a history of a previous infant weighing 5,300 grams (11 pounds, 11 ounces), with severe shoulder dystocia, and a borderline pelvis, it was resolved to proceed with an elective cesarean section. Ms. Desir underwent a low segment transverse cesarean section, without complication, and Frisline was delivered at 8:30 p.m. At delivery, Frisline cried immediately; showed good heart rate, respiratory effort, muscle tone, reflex irritability, and color; and did not require oxygen or resuscitation. Apgar scores were normal, and noted as 9, 9, and 9 at one, five, and ten minutes, respectively.2 Frisline was transferred to the neonatal intermediate unit for monitoring secondary to a history of maternal diabetes mellitus (DM) and insulin dependence. Admission physical was grossly normal, she remained clinically stable (with blood glucose within normal limits), and, but for a "very soft" heart murmur noted on September 8, 1999, her transition was unremarkable. Frisline was scheduled for discharge on September 10, 1999; however, due to maternal complications, she was transferred to the newborn nursery and held pending her mother's improvement. Maternal complications noted in Ms. Desir's Discharge Summary were as follows: . . . INITIALLY PATIENT WAS AFEBRILE WITH VITAL SIGNS STABLE. SUBSEQUENTLY THE PATIENT STARTED DEVELOPING TEMPERATURE SPIKES TO 102.6. EXAMINATION REVEALED POSITIVE UTERINE TENDERNESS WITH FOUL- SMELLING LOCHIA. THE PATIENT WAS DIAGNOSED WITH ENDOMYOMETRITIS ["inflammation of the muscular substance, or myometrium, of the uterus"3] AND STARTED ON GENTAMYCIN AND CLINDAMYCIN. THE PATIENT CONTINUED TO SPIKE AT 48 HOURS OF ANTIBIOTICS AND WAS STARTED ON AMPICILLIN. DURING THIS TIME, THE PATIENT DEVELOPED SOME NAUSEA AND VOMITING PROBABLY SUSPECTED SECONDARY TO POSTOPERATIVE ILEUS. NASOGASTRIC TUBE WAS NOT PLACED AS CLINICALLY PATIENT APPEARED TO BE IMPROVING WITH ADDITION OF THIRD ANTIBIOTIC. ON POSTOPERATIVE DAY SIX, THE PATIENT WITH RESOLVED ENDOMETRITIS, AFEBRILE FOR GREATER THAN 30 HOURS, TOLERATING A REGULAR DIET . . . . Therefore, on September 13, 1999, postoperative day six, Ms. Desir was discharged; however, given intervening complications, Frisline was not discharged until September 15, 1999. Notably, following her transfer to the newborn nursery on September 10, 1999, Frisline's course was unremarkable until at or about 1:30 p.m., September 12, 1999, when she appeared "jittery" and evidenced "intermittent grunting," and at 2:00 p.m., she was transferred to the neonatal intermediate care unit for observation and further management. At the time of transfer, labs were ordered, including complete blood count (CBC) and blood culture (BC), to rule out sepsis. Following admission to the neonatal intermediate unit, Frisline's examination was unremarkable, with no grunting noted, and her condition stable. Labs, including CBC and BC were unremarkable, as were follow-up labs on September 13, 1999, and Frisline was discharged on September 15, 1999. Discharge physical examination was grossly normal, but for a faint heart murmur. The cause and timing of Frisline's neurologic examination Petitioner offered no proof to address the cause and timing of Frisline's neurologic impairments. In contrast, NICA offered the medical records related to Frisline's birth and immediate postnatal course (Respondent's Exhibits 1 and 2), discussed supra; the deposition and report of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibits 3 and 5). Dr. Willis reviewed the medical records related to Frisline's birth and immediate postnatal course, and was of the opinion that the records failed to reveal any evidence of trauma or oxygen deprivation during labor, delivery, or the immediate postdelivery period, to support a conclusion that Frisline suffered "birth-related neurological injury." NICA also offered a report by Michael Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital (Respondent's Exhibit 4) who, following examination of Frisline, was of the opinion that her neurologic examination revealed a severe degree of mental and motor impairment.4 Notably, the medical records do not reveal an etiology for Frisline's neurologic impairment; Petitioner offered no competent medical evidence to support a conclusion that, more like than not, Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment; and the expert opinion of Dr. Willis is consistent with the medical records and otherwise uncontroverted. Consequently, it must be resolved that the proof fails to demonstrate that Frisline suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period that resulted in her neurologic impairment. (See Wausau Insurance Company v. Tillman, 765 So. 2d 123 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
