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.
Findings Of Fact Daniel Joshua Mayard was born on November 18, 2010, at Joe DiMaggio Children's Hospital in Hollywood, Florida. Daniel weighed 2,585 grams at birth. NICA retained Raymond J. Fernandez, M.D., as its medical expert in pediatric neurology. Dr. Fernandez examined Daniel and reviewed his medical records. In an affidavit dated March 1, 2013, Dr. Fernandez opined as follows: There is clear evidence of substantial mental and motor impairment, but etiology has not yet been determined. There is no evidence in the record for oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post delivery period that explains Daniel's findings. The one minute Apgar score of 2, followed by improved scores of 7 and 8 at 5 and 10 minutes, respectfully, without the need for intubation or ongoing resuscitation indicates stability after an initial brief period of postnasal neurological depression. This is not consistent with an acute anoxic or mechanical insult that explains Daniel's severe mental and motor impairment. Furthermore, there is no evidence in the NICU record for acute multi-organ injury and brain MRI on day three of life was abnormal, but not due to acute hypoxic, ischemic or mechanical injury. The MRI finding on day three is indicative of an abnormality of brain development, cause unknown, that occurred prior to labor and delivery. NICA retained Donald Willis, M.D., as an expert in maternal-fetal medicine to review the medical records of Daniel and his mother. In an affidavit dated February 27, 2013, Dr. Willis opined: It is my opinion that the baby was born by spontaneous vaginal birth and was depressed at birth with a one minute Apgar of 2. Resuscitation with only bag and mask ventilation for one minute and stimulation improved the Apgar score to 7 at five minutes and 9 at ten minutes. Significant oxygen deprivation during labor and birth would be unlikely with normal Apgar scores at five and ten minutes. MRI on DOL 3 did not show any acute features suggestive of hypoxic injury. The MRI finding of reduced brain volume suggests an abnormality of brain development that most likely occurred during fetal development. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor delivery or the immediate post delivery period. The fetal brain injury and other dysmorphic features are most likely related to abnormalities of fetal development and not oxygen deprivation during birth. A review of the file does not show any opinions contrary to the opinions of Dr. Fernandez and Dr. Willis that Daniel 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 Daniel does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma are credited.
Findings Of Fact Daniel was born on March 13, 2013, at the Medical Center located in Vero Beach, Florida. At the time of Daniel’s birth, Dr. Prieto was a “participating physician” who participated in the Plan for the year in which the injury occurred. See § 766.302(7), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., an obstetrician/gynecologist specializing in maternal-fetal medicine, to review Daniel’s medical records. NICA sought to obtain an opinion whether an injury to Daniel’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Daniel permanently and substantially mentally and physically impaired. After reviewing Daniel’s medical records, Dr. Willis opined that, within a reasonable degree of medical probability: [T]here was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spine during labor, delivery and the immediate post-delivery period. Based on the opinion and conclusions of Dr. Willis, NICA determined that Petitioners’ claim was not compensable. A review of the file reveals that no contrary evidence disputes Dr. Willis’ findings. His opinion is credible and persuasive. NICA subsequently filed the Unopposed Motion for Summary Final Order asserting that the Petition should be dismissed for two reasons. First, NICA asserts that Daniel has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Second, NICA declares that Petitioners’ claim is untimely because Petitioners filed their Petition more than five years after Daniel’s birth. Therefore, under section 766.313, Petitioners’ claim for compensation on behalf of Daniel is time-barred. Both of NICA’s arguments have merit. Petitioners do not oppose NICA’s motion.
Findings Of Fact Jordan Gonzalez was born on May 29, 2008, at North Shore Medical Center in Miami, Florida. Jordan weighed 2,530 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jordan and his mother. In an affidavit dated February 19, 2013, Dr. Willis opined the following within a reasonable degree of medical probability: It is my opinion that in summary, fetal abnormalities were identified by ultrasound during pregnancy. The baby was delivered by Cesarean section due to the development of fetal ascites. The mother was not in labor. The baby had several congenital abnormalities including hypoplastic lungs, single umbilical artery, ascites, dilated ventricles in the brain, agenesis of the corpus callosum and a small phallus. MRI did not identify findings suggestive of hypoxic brain injury. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or during resuscitation in the immediate post delivery period in the hospital. The mother was not in labor. The fetus had known abnormalities identified by ultrasound during pregnancy. It is most likely the baby's brain abnormalities are congenital and not related to oxygen deprivation at birth. Jordan was examined and evaluated by Michael Duchowny, M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated February 27, 2013, Dr. Duchowny found the following on his examination of Jordan: It is my opinion that the findings from the examination are consistent with both a substantial mental and motor impairment. Jordan is functioning at approximately age 2-3 month level and in addition to his global development delay manifests microcephaly, dynamic hypotonia and dynamic static hypotonia with hyperreflexia and pathological reflexes. However his examination reveals multiple congenital anomalies which together with the neuroimaging findings suggest that Jordan's neurological deficits were most likely acquired prior to birth. As such, it is my opinion that there is no evidence from his postnatal course or from his present physical findings to indicate that Jordan Gonzalez sustained an hypoxic or ischemic insults in the course of labor, delivery or the immediate neonatal period. I therefore am not recommending Jordan for inclusion into 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. Duchowny that Jordan did not suffer a neurological injury due to oxygen deprivation or mechanical trauma during labor, delivery, or resuscitation in the immediate postdelivery period are credited.
Findings Of Fact Elaina was born on July 23, 2018, at St. Vincent’s Hospital, located in Duval County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Elaina. In a medical report dated August 13, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, pregnancy was essentially uncomplicated. Spontaneous vaginal birth resulted in a healthy newborn with Apgar scores of 8/9. The newborn hospital course was uncomplicated. MRI at about one year of age showed cerebral volume loss, consistent with prior brain injury. The brain injury was apparently not due to birth related oxygen deprivation or trauma. As such, it is my opinion that there was no apparent obstetrical event that resulted in oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery or in the immediate post-delivery period. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in pediatric neurology, to examine Elaina and to review her medical records. Dr. Sheth examined Elaina on June 17, 2020. In a medical report dated June 17, 2020, Dr. Sheth summarized his examination of Elaina and opined, in pertinent part, as follows: Elaina Howe does suffer from substantial physical impairment and substantial mental impairment as manifest by delays in gross motor, and fine motor, language and personal social skills. Elaina Howe mental and physical impairments are likely to be permanent although there is likely to be some improvement with time. The mental and physical impairments are not consistent with an injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury occurring during labor and delivery or immediate post delivery period. The permanent and substantial impairments from the records provided and this evaluation do not appear to have occurred during labor, delivery or the immediate post-delivery period. NICA filed a Supplemental Affidavit of Dr. Willis on December 21, 2020, in which he offered an opinion on the fetal heart tracing records submitted by Petitioners. Dr. Willis opined as follows: The FHR tracing during labor was reassuring (no distress), consistent with my previous opinion, dated 6/17/20, that there was no apparent obstetrical event that resulted in oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery or in the immediate post delivery period. The Opinions se[t] forth in my Affidavit executed July 21, 2020 remain the same and are not modified by my review of the additional medical records as indicated herein. 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 Elaina. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Elaina should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. Petitioners have failed to respond to the Motion or the undersigned’s Second Order to Show Cause.
