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.
Findings Of Fact Uzziah Walker was born on November 23, 2012, at Sacred Heart Hospital located in Pensacola, Florida. Uzziah weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Uzziah. In an affidavit dated May 24, 2015, Dr. Willis described his findings in pertinent part as follows: In summary, there was no apparent fetal distress during labor. Spontaneous vaginal delivery resulted in a large subgaleal hemorrhage with blood loss and poor perfusion. The baby was not hypoxic at birth. Cord blood gas was normal (pH 7.25). However, blood loss from the scalp hemorrhage and poor perfusion resulted in intraventricular hemorrhage during the immediate post delivery period. There was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby’s brain during the immediate post delivery period. The poor perfusion resulted in brain injury. I am unable to comment about the severity of the brain injury. NICA retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Uzziah and to review his medical records. Dr. Duchowny examined Uzziah on March 11, 2015. In an affidavit dated May 29, 2015, Dr. Duchowny opined in pertinent part as follows: Review of medical records and imaging studies sent on February 4 and 6, 2015 was performed. They detail Uzziah’s birth at Baptist Hospital Health System in Pensacola with a forceps assisted delivery after a rapid decent. Uzziah evidenced tachycardia and some retractions at the time of delivery but his Apgar scores were 7 and 8. He was observed to have a subgaleal hematoma; a CT scan of the brain on November 23 revealed a large soft tissue hematoma and a small collection of subdural blood over the right cerebellar tent with a small amount of right ventricular hemorrhage. Of note, there was no cerebral edema or ventricular compression. No skull fractures were noted despite bilateral subgaleal hematomas. The neonatal course was otherwise uncomplicated. In summary, Uzziah’s neurological examination today reveals normal findings. He does not exhibit either mental or physical impairment and his overall development has caught up and is proceeding in an age appropriate fashion. I believe that Uzziah’s perinatal hematomas were resorbed without residual brain injury and his future prognosis is excellent. I explained to his family that Uzziah is doing very well and that his future is favorable from a prognostic standpoint. Given Uzziah’s normal neurological status today, I am not recommending compensation with the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent obstetrical event that resulted in scalp hemorrhage and poor perfusion with loss of oxygen to the baby's brain during the immediate post-delivery period, and that the poor perfusion resulted in brain injury. Dr. Willis’ opinion is credited. There are no opinions filed that are contrary to Dr. Duchowny’s opinion that Uzziah’s overall development is proceeding in an age appropriate fashion and does not exhibit either mental or physical impairment. Dr. Duchowny’s opinion is credited.
Findings Of Fact Jackson J. Salling was born on February 28, 2008, at Brandon Regional Hospital in Brandon, Florida. Jackson weighed 4,070 grams at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Jackson and reviewed his medical records. In an affidavit dated July 22, 2013, Dr. Duchowny opined as follows: Based upon the history provided to me and my physical and neurological examination of the child, and as further described in my evaluation report, I concluded that the child has a substantial mental impairment but does not evidence a substantial motor impairment. Further the medical records do not provide support for neurological injury of the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Rather, Jackson’s present neurological problems are prenatal in origin and unrelated to intrapartum or immediate post-delivery events. * * * It is my medical opinion that Jackson Salling has not suffered a birth-related neurological injury as defined by the provisions of Chapter 766, Florida Statutes, and the he therefore is not eligible for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. NICA retained Donald Willis, M.D., as an expert in maternal-fetal medicine to review the medical records of Jackson and his mother. In an affidavit dated July 19, 2013, Dr. Willis opined: Jackson Salling was born by vaginal delivery after elective induction of labor at 39 weeks gestation. Delivery was complicated by a shoulder dystocia lasting three minutes which resulted in a fractured humerus bone. Umbilical cord gas was within normal limits, and did not suggest hypoxia at birth. The newborn was cyanotic, floppy, and without spontaneous respirations at birth. His one- minute Apgar score was 3. Bag and mask ventilation was given and the child quickly improved, with an Apgar score of 9 at five minutes and 9 at 10 minutes. Significant oxygen deprivation during labor and birth would be unlikely with normal Apgar scores of five and ten minutes. The fractured humerus required orthopedic management. No MRI or CT scan of the head was done. Based on my review of medical records, it is my opinion that there was no 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. A review of the file does not show any opinions contrary to the opinions of Dr. Duchowny and Dr. Willis that Jackson did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period and that Jackson does not have substantial and permanent mental and physical impairments due to lack of oxygen or mechanical trauma are credited.
Findings Of Fact Christian was born on February 24, 2009, at Mease Countryside located in Safety Harbor, Florida. Christian, who was born a twin, weighed in excess of 2,000 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a medical report dated August 7, 2014, Dr. Willis opined as follows: Christine [sic] was delivered by Cesarean section for twins. Christine was designated as fetus A in the hospital records. Birth weight was 2,395 grams. Apgar scores were 9/9. The baby had mild respiratory distress and required nasal oxygen for <24 hours and then weaned to room air. NICU admission exam noted the baby to be alert and active with normal muscle tone. After weaning off oxygen, the baby remained stable until about one week of age when fever and seizure activity developed. E. coli meningitis was diagnosed. The baby subsequently developed hydrocephalus as a result of the meningitis. The child was subsequently diagnosed with cerebral palsy and developmental delay. Based on limited medical records, there does not apparent [sic] to be any 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. The baby had mild respiratory distress for less than 24 hours. The baby was stable until seizures developed at about one week age. Bacterial meningitis was diagnosed and resulted in hydrocephalus and brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated April 27, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Christian and to review his medical records. Dr. Duchowny examined Christian on January 14, 2015. In an affidavit dated April 29, 2015, regarding his independent medical examination of Christian, Dr. Duchowny opined as follows: In summary, Christian’s evaluation today reveals findings consistent with a substantial mental and physical impairment. Christian has a right hemiparesis with greater involvement of the upper extremity, absence of meaningful communication skills, repetitive self-stimulatory behavior, cortical visual impairment, microcephaly, and static hydrocephalus with a functioning left ventriculoperitoneal shunt. His developmental level is between 9-12 months of age which is significantly delayed. A review of Christian’s medical records confirms his mother’s impression of meningitis. Christian was diagnosed with Citrobacter meningitis in the Newborn Nursery. The records indicate that Christian was born at 33 weeks gestation and weighed 5 pounds 4 ounces at birth and had Apgar scores of 9 & 9 at 1 and 5 minutes. He was delivered by non-emergent repeat elective cesarean section. Citrobacter meningitis was confirmed on cerebrospinal fluid examination on March 3, 2009. Gram negative rods were noted in the fluid which revealed a protein of 248 with 2830 white blood cells. He was treated aggressively with antibiotics but developed obstructive hydrocephalus necessitating his ventriculoperitoneal shunting. Although Christian has a permanent and substantial mental and motor impairment, the etiology would appear to be postnatal- acquired Citrobacter meningitis and hydrocephalus. The medical records do not substantiate that Christian’s neurologic impairment resulted from either oxygen deprivation or mechanical injury in the course of labor or delivery. For this reason, I am not recommending Christian for inclusion 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 opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Christian’s examination reveals findings consistent with a substantial mental and motor impairment, his neurological problems did not result from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
The Issue At issue in this proceeding is whether Kevin Hollington, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding petitioners' failure of proof, respondent elected to offer into evidence the medical records filed with DOAH on June 13, 1996, which included records relating to Kevin Hollington's (Kevin's) birth and subsequent development, as well as the opinions of Charles Kalstone, M.D., a board certified obstetrician, and Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Kevin had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Kevin's birth and development Kevin was delivered vaginally, with vacuum assistance, at 3:17 a.m., June 8, 1992, at Baptist Hospital of Miami, Miami, Florida. His apgars were normal at birth (7 at one minute and 9 at five minutes), and arterial pH and venous pH were normal at 7.14 and 7.29, respectively. His newborn course was unremarkable and he was discharged with his mother on June 9, 1992. Kevin was readmitted to the hospital on June 18, 1992, with a history of fever for one day. Evaluation revealed urosepsis, with renal failure and marked dilatation of the kidneys on both sides. A head CT scan was done, which was within normal limits, as well as a electroencephalogram, which was also normal. Kevin was treated with a 10-day course of antibiotics, and discharged on July 2, 1992. On June 4, 1996, Kevin was examined by Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital. Dr. Duchowny's examination revealed evidence of neurologic problems, specifically in the areas of communication, socialization, and motor abilities. Noted were marked impairment of social interaction and communication, and poorly coordinated tongue movements, with drooling. Kevin's eye movements were also observed to be poorly coordinated, and motor exam revealed generalized hypotonia with diminished deep tendon reflexes. While neurologically impaired, it was Dr. Duchowny's opinion that Kevin's presentation was most consistent with a diagnosis of childhood autism, a developmental abnormality of the brain unassociated with birth asplysia or trauma. Given the lack of any compelling proof of oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation, and the otherwise unremarkable course of Kevin's delivery, Dr. Duchowny's opinion is the most likely explanation of Kevin's presentation and is therefore accepted.
Findings Of Fact Te’Yani was born on April 26, 2012, at Plantation General Hospital located in Plantation, Florida. Te’Yani weighed 3,505 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Te’Yani. In an affidavit dated September 16, 2013, Dr. Willis opined the following: It is my opinion that the medical records suggest that baby did not suffer significant oxygen deprivation during labor or delivery. Anemia due to blood loss occurred just prior to delivery and the newborn anemia resulted in oxygen deprivation and multisystem failure. However, there are no studies to indicate the oxygen deprivation resulted in brain damage. As such, it is my opinion that there was an apparent obstetrical event that occurred prior to delivery that caused anemia. The anemia resulted in oxygen deprivation during the immediate post delivery period. There is no documentation in the medical records to suggest the oxygen deprivation resulted in brain damage. Michael S. Duchowny, M.D., a pediatric neurologist, was retained by NICA to examine Te’Yani. Dr. Duchowny examined Te’Yani on August 14, 2013. In an affidavit dated September 18, 2013, Dr. Duchowny opined as follows: It is my opinion that Te’Yani’s neurological examination disclosed no significant findings. She is functioning at age level with respect to her mental and physical abilities and there is little evidence of left-sided motor disability. I had an opportunity to review medical records which were sent to me on June 27, 2103, and supplementary records faxed on July 2013. The records document Te-Yani’s [sic] birth at Plantation General Hospital which was complicated by vaginal bleeding thought to represent placental abruption or a velamentous insertion. Te’Yani was born at 30 weeks gestation and weighed 7 pounds 12 ounces at birth. Her Apgar scores were 4, 5, and 7 at 1, 5, and 10 minutes. Arterial blood gases revealed a pH of 7.17 and a base excess of -17.2. Te’Yani breathed initially then became cyanotic and apneic and required assisted ventilation with CPAP bag and mask. Her neonatal course was complicated by anemia and thrombocytopenia which required transfusions. She was placed on a hyperthermia protocol for three days. Suspected sepsis and pneumonia were both treated vigorously with antibiotics. Cultures were remarkable. As such, it is my opinion that Te’Yani’s normal neurological status documents that she is not suffering from either a permanent or substantial mental or physical impairment. For this reason, I do not recommend that she be considered for compensation with the NICA program. A review of the file does not show any contrary opinions to those of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Fernandez that Te’Yani did not suffer a brain injury due to oxygen deprivation during labor and delivery are credited. Dr. Duchowny’s opinion that Te’Yani does not have substantial and permanent mental and physical impairments is credited.
Findings Of Fact Ian Ocasio was born on April 20, 2010, at Winnie Palmer Hospital for Women and Children in Orlando, Florida. Ian weighed 2,749 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Ian. In a medical report dated September 20, 2013, Dr. Willis opined: In summary, the baby was delivered by Cesarean section due to preterm labor and a recent genital herpes outbreak. Herpes cultures from the baby were negative. There was no fetal distress during labor. The baby was not depressed at birth and did not require any resuscitation. Umbilical cord blood gas was not done. Apgar scores were normal. 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. A review of the file does not show any contrary opinions, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinion of Dr. Willis that Ian did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post- delivery period is credited.
The Issue On November 17, 2020, Petitioners Meghan Gibson and Jarrod Gibson, as parents and natural guardians of Oliver Gibson (Oliver), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition identified Michelle Rothen, M.D., and Shawn Lee, M.D., as the physicians who provided obstetric services at the birth of Oliver on July 31, 2016, at Orlando Health, Inc., d/b/a Winnie Palmer Hospital (Winnie Palmer Hospital), located in Orange County, Florida. DOAH served Michelle Rothen, Shawn Lee, Winnie Palmer Hospital, and NICA with a copy of the Petition on December 11, 2020. On February 9, 2021, NICA filed a Notice of Non-Compensability and Request for Evidentiary Hearing on Compensability, asserting that Oliver did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to determine compensability. On February 15, 2021, the undersigned entered an Order that required the parties to confer and advise concerning the need for a hearing, if any, and if a hearing is needed, when the parties will be prepared to proceed to a hearing, the issues in dispute, the estimate of time required for hearing, and the choice of venue. On March 5, 2021, NICA filed a Response to Order Dated February 15, 2021. The Response to Order Dated February 15, 2021, noted that NICA “does not anticipate a hearing will be required in this matter[,]” and stated, in part, that “NICA has filed a Motion for Summary Final Order seeking a ruling that the claim is not ‘Compensable’ …..” Intervenors Michelle Rothen, Shawn Lee, and Women’s Care Florida, LLC, filed a Response to Order Dated February 15, 2021, which similarly noted that “a hearing will not be required in this matter” and that they will not oppose NICA’s Motion for Summary Final Order. Petitioners did not respond to the February 15, 2021, Order. On March 16, 2021, NICA filed its Motion for Summary Final Order (Motion). Petitioners have not filed a response to the Motion within the seven-day time period for a response set forth in Florida Administrative Code Rule 28-106.204(4), and, as noted above, did not respond to the undersigned’s February 15, 2021, Order.
Findings Of Fact Oliver was born on July 31, 2016, 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 Oliver. In a medical report dated December 24, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at 37 weeks for preeclampsia. Chorioamnionitis developed during labor and Cesarean delivery was done for a non- reassuring FHR pattern and failed induction. The newborn was depressed with cord blood gas pH < 7.00 However, the baby responded to resuscitation efforts and was on room air by six hours after birth. Neurologic exam was noted to be essentially normal. Head imaging studies were not done during the newborn hospital course. Brain MRI at three years of age was normal. There was likely some degree of oxygen deprivation at birth, based on the low Apgar scores and cord blood pH < 7.00. However, the baby responded to resuscitation efforts with no identifiable brain injury. Although there was an obstetrical event that resulted in some degree of oxygen deprivation to the baby during labor and delivery and possibly extending into the immediate post-delivery period, the oxygen deprivation did not result in identifiable brain injury. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello-Espinosa), a medical expert specializing in pediatric neurology, to examine Oliver and to review his medical records. Dr. Bello-Espinosa examined Oliver on February 5, 2021. In a medical report dated February 7, 2021, Dr. Bello- Espinosa summarized his examination of Oliver and opined, in pertinent part, as follows: Oliver is a four-year-six-month-old boy with a history of perinatal depression after birth. He had rapid recovery in the NICU. He did not need therapeutic hypothermia. He did not have symptomatic seizures or other clinical signs to indicate a perinatal hypoxic event. His neurological examination today was completely normal except for dysfluency of speech as frequently seen in children with mixed receptive-expressive language disorders. * * * Oliver does not suffer of a substantial mental or physical impairment at this time. * * * Oliver does not have mental or physical impairments. * * * In reviewing all the available documents, the evolution of [his] symptoms, there is no evidence of mental and physical impairments due to severe injury to the brain acquired due to oxygen deprivation to the brain occurring during the labor- delivery period. * * * There are no permanent substantial mental and physical impairments that occurred during birth. Considering the clinical presentation, I feel there is no[t] enough evidence to recommend Oliver be included in 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 opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Oliver that resulted in identifiable brain injury. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bella-Espinosa’s opinion that Oliver should not be considered for inclusion in the NICA program. Dr. Bella-Espinosa’s opinion is credited. Petitioner has failed to respond to the Motion.
Findings Of Fact Noah E. Ramos was born on October 9, 2014, at Winnie Palmer Hospital in Orlando, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Noah’s medical records. In a medical report dated February 3, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, spontaneous vaginal delivery resulted in a depressed newborn. Cord blood gas was within normal limits, suggesting there was no significant oxygen deprivation during labor. There was no detectable heart beat at birth. The baby responded to resuscitation after birth, but respiratory distress worsened about 2 hours after birth. The baby became acidotic (pH 6.92) and required intubation. MRI showed a subarachnoid hemorrhage and ischemia. The baby was diagnosed with HIE. There was an apparent obstetrical event that resulted in oxygen deprivation and some degree of brain injury at birth and in the post delivery period. I am not able to comment about the severity of the brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated May 2, 2016. Dr. Willis’ opinion that there was an obstetrical event that resulted in oxygen deprivation and some degree of brain injury at birth is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Noah. Dr. Sigurdardottir reviewed Noah’s medical records, performed an independent medical examination on him on November 11, 2015, and subsequently reviewed additional medical records, on February 22, 2016. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a youngster with evidence of neonatal asphyxia mainly by his Apgar score of 0 at 1 minute, although rapid improvement is noted with 6 at 5 minutes, 8 at 10 minutes. His mother does report a 1 month long NICU stay but records indicate discharge on 10/22. Regardless of his early medical history, he is now age appropriate in both cognition, visual maturity and motor skills. Result of question 1: The patient is found to have no permanent substantial physical or motor impairment. Result of question 2: There is evidence of complications during Noah’s birth that could have resulted in hypoxic neurologic injury. There is, however, no clear evidence in the history to suggest that his low Apgar scores are secondary to any prenatal abnormality and is, therefore, felt to be [the] result of perinatal oxygen deprivation. Result of question 3: We would expect full life expectancy. In light of the above-mentioned details and the fact that Noah has no current signs of neurologic sequelae, I do not recommend Noah to be included into the Neurologic Injury Compensation Association (NICA) program and would be happy to answer additional questions. Dr. Sigurdardottir reaffirmed her opinions in an affidavit dated April 29, 2016. 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. Sigurdardottir’s opinion that Noah does not have a substantial physical or motor impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir that Noah does not have a substantial physical or motor impairment.
