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.
The Issue The issue in this case is whether Kayla Mackenzie Stowers sustained a birth-related neurological injury.
Findings Of Fact Tatiana C. Stowers and Robert M. Stowers are the natural parents of Kayla Mackenzie Stowers, a minor. Kayla was born a live infant on October 12, 2009, at Orange Park Medical Center, a licensed hospital located in Orange Park Florida. Eric J. Edelenbos, M.D., provided obstetric services at the birth of Kayla, and at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7), Florida Statutes. Kayla weighed 3,078 grams at birth. On October 12, 2009, Mrs. Stowers, who was at full term, was admitted to Orange Park Medical Center at 6:28 a.m., for induction of labor. Her prenatal course had been uneventful. The baby?s baseline fetal heart rate on admission was 150 bpm, and the fetal heart rate monitor did not show any fetal distress during labor or delivery. At 8:05 a.m., Pitocin was administered to augment Mrs. Stowers? labor. During her labor, the dosage of Pitocin was increased. At 1:48 p.m., Dr. Edelenbos ruptured Mrs. Stowers? membranes, and the medical records indicate that the amniotic fluid was clear and odorless. At 9:40 p.m., Mrs. Stowers delivered Kayla by normal spontaneous vaginal delivery. At birth, Kayla?s mouth and nose were suctioned, but no other resuscitative measures were needed or administered in the delivery room. No complications were noted at her birth, and she was in stable condition. Kayla?s Apgar scores at one and five minutes were eight and nine respectively. At 10:30 p.m., Kayla was noted to have respiratory distress. Her left nasal passage was tight and her right nare was patent. She was transferred to the hospital?s neonatal intensive care unit. On October 13, 2009, at 12:05 a.m., Kayla was placed on a nasal cannula and an IV was started. Antibiotics were given at 12:20 p.m., and Neo-Synephrine was administered for nasal stuffiness. By 3:45 p.m., on October 13, 2009, Kayla had increased retractions and grunting and was placed on neonatal CPAP at 100% oxygen. During the evening of October 13, 2009, Kayla experienced two apneic episodes with jerking movements of her arms and leg. On October 14, 2009, Kayla was on CPAP for four hours and then intubated due to the apneic episodes the previous evening. A chest X-ray taken of Kayla on October 13, 2009, was within normal limits. On October 14, 2009, Kayla had a normal neonatal head ultrasound. On October 15, 2009, it was noted that Kayla had not experienced any abnormal movements for 24 hours. At 6:00 p.m., on October 17, 2009, Kayla experienced periodic episodes of jerking of hands and legs, in addition to the arching of her back. On October 18, 2009, Kayla had jerky movements of all extremities, including her eyes rolling back. The movements stopped with restraint, but were not typical seizure-like movements. On October 19, 2009, due to suspected seizures, respiratory distress, and suspected sepsis, Kayla was transferred from Orange Park Medical Center to Wolfson Children?s Hospital for further workup. An EEG performed on Kayla on October 20, 2009, was within normal limits. A follow-up video EEG on November 4, 2009, was normal. An MRI was done on Kayla on October 21, 2009, and the followings findings were reported: Moderate image degradation secondary to patient?s motions. Normal variant cavum septus pellucidum and cavas vergae. Prominent extra-axial fluid at the anterior aspect of both middle fossae, and with „apparent? suboptimal opoerculation of the Sylvian fissures ? clinical signicance. Followup US may be helpful for further evaluation. Remainder of the examination appears otherwise unremarkable. Kayla?s attending physician at Wolfson Children?s Hospital indicated in her discharge summary dated November 10, 2009, that the MRI was normal. On December 9, 2009, Kayla was taken to the emergency room at Wolfson Children?s Hospital. While in the emergency room, Kayla experienced apneic episodes that required intubation. She was admitted to Wolfson Children?s Hospital. While admitted to Wolfson Children's Hospital, Kayla had abnormal movements that were nonspecific and not due to seizures. Kayla was discharged on December 22, 2009. In his discharge summary, Clifford David, M.D., summarized the hospital course as it related to the seizure-like activities. Neurology-wise, the patient was again worked up for this possible seizure-like activity, which was possibly due to reflux. This workup included another EEG and MRI. The CT of the head that was done on admission was reported as positive for a remote area of ischemia involving the basal ganglia but repeat MRI on admission showed no area of acute ischemia. The patient was witnessed to have back arching and head extension with some clenching of the arms and chest, again unsure whether this was seizure versus reflux versus obstructive airway. Neurology examined the patient and EEG showed no epileptiform discharges although was limited secondary to movement artifact. The repeat MRI referenced in Dr. David?s discharge summary was done on December 12, 2009. The findings of this MRI indicated that there was no acute ischemic event. Respondent retained Donald C. Willis, M.D., to review the medical records for Kayla. Dr. Willis reviewed the fetal heart rates of Kayla as recorded by the fetal heart rate monitor during labor. It is Dr. Willis? opinion that the fetal heart rate monitor did not show any fetal distress during labor. On the issue of whether there was an obstetrical event which resulted in loss of oxygen or mechanical trauma to Kayla during labor or delivery, Dr. Willis opined: In summary, there was no fetal distress during labor. The baby was not in distress at birth. Apgar scores were 8/9. Immediately after delivery, the baby was placed on the mother?s abdomen for bonding. The newborn course was complicated by a complex history of apnea episodes, respiratory distress and possible seizures. EEG?s and MRI studies were normal. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby?s brain during labor or delivery. Raymond J. Fernandez, M.D., a pediatric neurologist, reviewed Kayla?s medical records and examined Kayla on April 30, 2013. He opined as follows: There is ample evidence for substantial mental and motor impairment, but this is of unknown etiology. There is no evidence in the medical record for oxygen deprivation or mechanical injury of brain or spinal cord during labor, delivery, or the immediate post delivery period that explains Kayla?s substantial and global impairment. Petitioners have presented no expert opinions that refute the opinions of Dr. Willis and Dr. Fernandez. The opinions of Dr. Willis and Dr. Fernandez that Kayla?s mental and motor impairments are not due to oxygen deprivation or mechanical injury of the brain or spinal cord during labor, delivery, or the immediate post delivery period are credited.
Findings Of Fact Alyssa York was born on June 11, 2014, at Baptist Medical Center South located in Jacksonville, Florida. Alyssa weighed 4,026 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alyssa. In a medical report dated December 8, 2016, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia. The newborn was not depressed with a 5 minute Apgar score of 8. Resuscitation after delivery required only tactile stimulation and blow-by oxygen. The baby had an Erb’s palsy, but otherwise an uncomplicated newborn hospital course. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Alyssa and to review her medical records. Dr. Sigurdardottir examined Alyssa on December 2, 2016. In a medical report regarding her independent medical examination of Alyssa, Dr. Sigurdardottir opined as follows: Summary: Alyssa is a 2-1/2 year-old who suffered a brachial plexus injury during a vaginal delivery complicated by a 1 minute shoulder dystocia. At the current age of 2 years 5 months she has a functional deficit that seems relatively mild and has not needed surgical intervention at this time. Her cognition, mental abilities seem age appropriate. In light of the above, my results are the following: Result as to question 1: Alyssa is found to have a mild physical impairment, but no noted mental impairment at this time. Result as to question 2: The brachial plexopathy is most likely due to injury sustained during the birthing process. Results as to question 3: The prognosis for full recovery is regarded [sic] as she continues to have functional limitations in her right arm. She however has normal abilities in other areas and her cognition is completely normal. In light of this, I do not recommend Alyssa to be included in the NICA program. I will be happy to answer additional questions. 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 Alyssa has a mild physical impairment but is not found to have a mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Alexander Soriano born on July 3, 2011, at Winnie Palmer Hospital in Orlando, Florida. Alexander weighed 3,442 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Alexander. In a medical report dated March 28, 2013, Dr. Willis opined the following: In summary, the mother presented at term with decreased fetal movement and an abnormal FHR pattern. There was no mention of the mother being in labor. Her cervix was not dilated and consistent with no active labor. Cesarean section delivery was required. The baby was severely depressed and had no detectable cardiac activity at birth. The hospital course was consistent with hypoxic ischemic brain injury with multisystem dysfunction, EEG and MRI studies should [sic] brain injury. Available information suggests the patient was not in labor. Oxygen deprivation and brain injury most likely occurred at some time prior to delivery. Although the hypoxia and brain injury may have continued during delivery and into the post-delivery period, the initial brain injury and substantial damage were most likely already present prior to birth. NICA retained Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the instant claim and to conduct an examination of Alexander, and render an opinion whether a birth-related neurological injury occurred. In a report dated January 23, 2013, Dr. Duchowny opined: While Alexander's birth history documents severe problems resulting from his meconium aspiration syndrome, his present neurological examination reveals neither a permanent nor substantial mental or physical impairment. Essentially Alexander has done remarkably well despite his neonatal course, and I would anticipate continued improvement in the future. I regard his developmental abnormalities as unrelated to the perinatal circumstances and therefore not recommend Alexander for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioners and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Alexander did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period is credited. Dr. Duchowny's opinion that Alexander does not have a permanent and substantial mental and physical impairment is credited.
Findings Of Fact Based upon Petitioner and Respondent’s stipulation, the following facts are found: Elicia Barber (Petitioner) is the parent and legal guardian of Levi Harper (Levi), and is the “Claimant” as defined by section 766.302(2). On or about May 11, 2019, Levi incurred a “birth- related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Levi’s birth-related injury. At birth, Levi weighed 2,940 grams. Fernando Moreno, M.D., David Miller, M.D., and Daina Green, M.D., rendered obstetrical services in the delivery of Levi and, at all times material to this proceeding, were “participating physicians” as that term is defined in section 766.302(7). St. Vincent’s Medical Center is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Levi was born. Petitioner filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Aiden Curtis Gordon Morris was born on September 15, 2011, at Sacred Heart Hospital in Pensacola, Florida. He weighed 3,300 grams at birth. NICA requested that Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine to review the medical records of Ms. Greenough and Aiden. The purpose of his review was 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. Dr. Willis reviewed the records and made the following findings, which he set forth in an affidavit attached to the Motion for Summary Final Order. According to the medical records, the mother Natalie Greenough was a 16 year old G1. She presented to the hospital at 38 weeks gestational age in labor. Her cervix was dilated 5 to 6 cms on admission. Amniotic membranes were ruptured with clear fluid. The fetal heart rate (FHR) monitor on admission shows a reactive heart rate pattern with a normal baseline rate of 120 to 130 bpm. Some variable FHR decelerations and episodes of reduced FHR variability are noted during labor. An abnormal FHR pattern with reduced heart rate variability and variable decelerations continued for about 90 minutes prior to delivery. Severe variable decelerations with a drop in FHR to <60 bpm occurred about 40 minutes before delivery. Cesarean delivery was done for the non- reassuring FHR pattern. Birth weight was 3,300 grams. The newborn was depressed with Apgar scores of 1/4/6. Umbilical cord blood gas was abnormal with a reported pH of 6.99. Initial resuscitation included bag and mask ventilation with a good improvement in heart rate. Despite the improvement in heart rate, poor perfusion and respiratory depression continued. Intubation for mechanical ventilation was required. Admission physical exam in the NICU describes the baby as lethargic with poor perfusion of the extremities and on the ventilator for respiratory depression. Body cooling was initiated due to hypoxic ischemic encephalopathy (HIE). The newborn hospital course was complicated. Multisystem failure occurred. Poor perfusion required intravenous fluid boluses. Respiratory depression was present at birth and required intubation and mechanical ventilation. Disseminated intravascular coagulation manifest with hematuria and required fresh frozen plasma. Platelet count dropped to 91,000. Seizure activity was noted on DOL 2. EEG was consistent with mild HIE. MRI on DOL 7 was reported as normal. In summary, labor was complicated by fetal distress, requiring Cesarean delivery. The newborn was depressed. Umbilical cord blood gas showed significant acidosis with a pH or 6.99. The baby was lethargic, had poor perfusion and respiratory depression at birth. Hospital course was complicated by multisystem organ failure. Although the MRI on DOL 7 was reported as normal, EEG was consistent with HIE. Dr. Willis opined that there was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery, and continuing into the immediate post delivery period, which resulted in brain injury. He could not opine on the severity of the injury. NICA requested Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to review the medical records for Aiden and to conduct an independent medical examination of Aiden. Dr. Fernandez examined Aiden on August 8, 2012. He made the following findings, which he set forth in an affidavit attached to the Motion for Summary Final Order, based on the medical records and a history from Ms. Greenough. Aiden's mother, Ms. Natalie Greenough, was admitted to the hospital on September 15, 2011, in active labor. The expected date of delivery was September 24, 2011. She received adequate prenatal care and the pregnancy was uncomplicated. Mrs. Greenough was 16 years old during the pregnancy. Her blood pressure on admission was 110/50 and pulse rate was 80. There was arrest of descent during labor and a nonreassuring fetal heartrate with bradycardia detected, requiring delivery by Cesarean section. The Apgar scores were 1, 4, and 6 and the umbilical artery cord blood pH was 6.9. Aiden required intubation in the delivery room. In the initial newborn examination he was described as having decreased movement and tone, poor perfusion and apnea. Upon admission to the Neonatal Intensive Care Unit, birth weight was 3,300 grams, length 52 centimeters, head circumference 36 centimeters, temperature 101, heart rate 154 and blood pressure was 55/22. He was lethargic and movement was reduced. He aroused during the examination. The Moro reflex was present. Sucking reflex was present, but diminished. Gag reflex was present as were plantar and palmar grasping reflexes. He was intubated and receiving assisted ventilation. He met clinical and neurological criteria for whole body cooling, which was initiated promptly (criteria for whole body cooling included periodic hypotohnia, decreased activity and lethargy). There was reduced urine output and hematuria due to urethral trauma during insertion of a Foley catheter. Seizures were a concern on September 16th, treated with Phenobarbital. There was seizure recurrence on September 18th and Phenobarbital was continued. On September 21, 2011, muscle tone and activity were decreased, but improving. Body rewarming began on September 21, 2011. Cranial ultrasound on September 15th was normal and MRI of the brain on September 21, 2011 was normal also. Specifically, there were no areas of restricted diffusion. An EEG on September 20, 2011, was abnormal due to a somewhat poorly organized background, consistent with a mild encephalopathy, but no seizures. In the discharge summary dated September 25, 2011, it was stated that muscle tone and activity were normal. MRI of the brain at four months of age was reportedly normal. * * * Following discharge, he was healthy. He displayed some periodic eye rolling movements for which he was examined by his Neurologist who performed a brain scan and an EEG that he stated were normal. These episodes have nor recurred and he has not required antiepileptic drug treatment since he was in the nursery. Initially, it was felt that Aiden had mild cerebral palsy because of tightness in his arms, but this has resolved. His neurologist in the Pensacola area thought that his development and his physical examination were normal at the time of the last visit and he did not feel that a return appointment was necessary. Aiden was evaluated by the Early Steps Development Program and he has been enrolled in physical therapy. He has been able to shift himself to the sitting position for several weeks. He crawls or creeps and about a month ago began pulling himself to the standing position. He is able to stand for a few seconds independently, but does not yet take independent steps. He cruises along furniture. Aiden was described as being alert, attentive, and inquisitive. He babbles, imitates sound, says "ma-ma" and "da-da" meaningfully and says and waves "bye-bye" meaningfully. He plays pat-a- cake. He uses both hands well. Picks up small objects with thumb and index finger, feeds himself and claps his hands in play. After performing a physical examination on Aiden on August 8, 2012, Dr. Fernandez made the following findings: PHYSICAL EXAMINATION: Head circumference 47 centimeters (50th percentile). Weight last week was 20 pounds 13 ounces. No dysmorphic features. No skin abnormalities of neurological significance. Funduscopic examination was limited, but grossly normal. Heart, lung and abdomen were normal. No orthopedic abnormalities. Skull was symmetric. There were no abnormalities over the spine. Aiden was alert. Attentive and inquisitive. He played appropriately with toys and spinning and rotating parts that he manipulated well. He consistently turned when his name was called. He babbled and said and waved "bye-bye" when leaving the room. Vision and hearing were grossly normal. Eyes were well aligned and eye movement was full, horizontally and vertically, without significant nystagmus. There was no drooling. Muscle tone was normal, proximally and distally. He shifted himself to sitting and crawling positions and pulled to stand. He cruised along furniture and took steps with hands held. He had good sitting balance and shifted position quickly and in well coordinated fashion. He moved about either in the crawling or sitting position by pushing with his arms or either leg. He did not yet crawl in reciprocal fashion. Muscle tone was normal and he moved all limbs well. There were no focal or lateralized motor abnormalities. No tremor or involuntary movement. He had well-coordinated pincer grasp, bilaterally, and transferred smoothly from hand to hand. He held one block in each hand and banged them together. He stretched his arms and leaned forward for toys that were otherwise out of reach. He looked for objects that were hidden from view. Deep tendon reflexes were 2+. There were no pathological reflexes elicted. Based on his review of the medical records, discussions with Ms. Greenough, and a physical examination of Aiden, Dr. Fernandez opined that there was no evidence of brain injury due to oxygen deprivation during labor and delivery resulting in substantial and permanent mental or motor impairment. He felt that Aiden should continue to improve in all areas and did not anticipate that in the future that there would be evidence of substantial mental and motor impairment due to oxygen deprivation during labor and delivery. 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. Fernandez. The opinion of Dr. Fernandez that Aiden is not substantially and permanently mentally and physically impaired is credited.
