The Issue The issues to be determined are whether the infant, Lucia Cura (Lucia), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2011), and whether Petitioner’s claim for compensation is barred by the application of section 766.313.
Findings Of Fact On October 5, 2011, at 6:43 p.m., Dana Cura gave birth to a baby girl named Lucia Cura. A certified copy of the birth certificate was submitted by Petitioner as an attachment to the Petition for Benefits. The birth certificate is a record of vital statistics, and as such, is an exception to the hearsay rule pursuant to section 90.803(9), Florida Statutes (2019). The birth certificate lists Lucia’s weight at birth as four pounds, six ounces. The discharge summary from St. Joseph’s lists Lucia’s weight at birth as 1,995 grams. At the time of her discharge on October 18, 2011, Lucia’s birth weight was 2,280 grams. Petitioner has submitted nothing to refute the birth certificate and discharge summary’s record of Lucia’s birth weight. Likewise, Petitioner has not disputed that Lucia’s birth weight was below the 2,500 grams required for eligibility for NICA benefits for a baby born of a single gestation, or the 2,000 grams required for a multiple gestation birth, as the term “birth-related neurological injury” is defined in section 766.302(2).
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
The Issue On August 28, 2017, Petitioners, Gayla Lavender and Timothy Lavender, as parents and natural guardians of Timothy Ryan Edward Lavender (Timothy), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 776.301 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 named Karen Bruder, M.D., as the physician who provided obstetric services for the birth of Timothy at Tampa General Hospital, in Tampa, Florida, on October 25, 2009. DOAH served a copy of the Petition to NICA on September 18, 2017. Karen L. Bruder, M.D., was served with a copy of the Petition, and filed a Petition to Intervene on October 16, 2017. DOAH sent Tampa General Hospital a copy of the Petition via certified mail on September 15, 2017. On April 3, 2018, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Timothy did not meet the requisite minimum statutory birth weight as required by section 766.302, Florida Statutes. Neither Petitioner nor Intervenor Karen L. Bruder, M.D., filed a response to the Motion for Summary Final Order.
Findings Of Fact Timothy was born at Tampa General Hospital, in Tampa, Florida, on October 25, 2009. He was a single gestation. NICA attached to its motion the affidavit of the Custodian of Records for Tampa General Hospital, and nine pages of medical records for Timothy. The medical records show that Timothy’s birth weight was less than 2,500 grams. Specifically, the records show that his birth weight was 1,980 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical records from Tampa General Hospital showing that Timothy’s birth weight was less than 2,500 grams.
Findings Of Fact Jamie Ventura and Jahdai Rodriguez are the parents and natural guardians of Izael. Izael was born on December 26, 2010, at Winnie Palmer Hospital for Women and Babies in Orlando, Florida. Timothy D. O'Leary provided obstetrical services during the delivery of Izael. Dr. O'Leary is a participating physician as defined in section 766.302(7). Izael weighed 935.5 grams at birth.
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
Findings Of Fact Jetty was born on June 19, 2015, at Halifax Health Medical Center, d/b/a Halifax Medical Center, located in Volusia County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jetty. In a medical report dated August 6, 2021, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, spontaneous labor occurred at term and ended with a spontaneous vaginal delivery. Apgar scores were 5/9. Bag and mask ventilation was given for about 4-minutes due to respiratory distress at birth. Oxygen was weaned with spontaneous respirations. The baby was considered stable and remained in the room with the mother. Twenty minutes after birth the baby was noted to be floppy and cyanotic. Laboratory evaluation identified severe hypoglycemia and DIC. MRI showed brain hemorrhage with follow up MRI showing evolving brain injury related to the previously identified hemorrhage. Genetic evaluation was negative. The baby suffered brain injury as indicated by MRI. Although the baby was initially depressed at birth, stabilization occurred shortly after birth with the baby remaining in the room with the mother and not requiring nursery care. This would suggest the baby did not have significant oxygen deprivation at birth. The brain injury likely occurred at some time around delivery, but it does not appear the brain injury was caused by oxygen deprivation or trauma during labor and delivery. I do not have any opinions about issues related to the hypoglycemia or DIC as a cause for the brain injury. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a medical expert specializing in pediatric neurology, to examine Jetty and to review his medical records. Dr. Duchowny examined Jetty on June 7, 2021. In a medical report dated August 8, 2021, Dr. Duchowny summarized his examination of Jetty and opined, in pertinent part, as follows: In summary, Jetty’s examination reveals substantial cognitive and motor deficits consistent with global developmental delay. Jetty is non- fluent, non-ambulatory with spastic quadriparesis and primitive reflex responses. He has asymmetrically greater right-sided involvement, a non-fixed right elbow contracture, and shortening of his right leg. He lacks consistent visual fixation and following, and a history suggestive of bilateral optic atrophy. There is a longstanding pharmaco- resistant epilepsy. Jetty’s neurodevelopmental delays have been present since infancy and he has shown little developmental progress. A review of Jetty’s medical records reveals that he was born at Halifax Medical Center and was the product of a 40 week gestation with a birth weight of 3742 grams. The pregnancy was complicated by maternal maintenance buprenorphine for management of substance abuse. Rupture of membranes occurred 4 hours prior to delivery and revealed thickly meconium-stained fluid. Apgar scores were 5 and 9 at 1 and 5 minutes; cord blood gases were therefore not ordered. Jetty was placed with his mother in the newborn nursery but suddenly became cyanotic and ashen, received supplemental blow-by oxygen, and was transferred to the NICU. An Accucheck was unrecordable and serum glucose determination was recorded as 1. Arterial blood gases revealed respiratory acidosis with a pH of 7.24 and base excess of -1.8. Laboratory examination revealed a leukocytosis (WBC=36.3) with elevated mononuclear cells and bandemia. Jetty was subsequently transferred to Shands Jacksonville where he evidenced an elevated CRP, a PDA, acute adrenal insufficiency, hematuria, acute renal failure and DIC with thrombocytopenia and abnormal clotting parameters. MR imaging performed on July 7th revealed multifocal diffusion-weighted abnormalities, ventriculomegaly and periventricular signal abnormality; the report also noted intracranial hemorrhage. Subsequent MR imaging on July 20th revealed the development of multi-cystic white matter lesions, PVL and further ventricular enlargement. The clinical and imaging findings and brain injury are most likely caused by the fetal inflammatory response syndrome, and did not result from either mechanical injury or oxygen deprivation in the course of labor or delivery. The hemorrhage reported on brain imaging did not contribute to the brain injury. I am therefore not recommending that Jetty be considered for inclusion 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 Jetty. Dr. Willis’s opinion is credited. There have been no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Jetty should not be considered for inclusion in the NICA Plan. Dr. Duchowny’s opinion is credited. Petitioners have failed to respond to the Motion or the undersigned’s Order to Show Cause.
Findings Of Fact The parties have stipulated to the following facts. Iyonna Hugley was born on October 14, 2010, at 1950 hours at Wuesthoff Medical Center, Melbourne, Florida. Mark Sargent, M.D., provided obstetrical services during the delivery of Iyonna. Dr. Sargent is a participating physician in the Plan as defined in section 766.302(7). At birth, Iyonna weighed 2,347 grams and was delivered from a single gestation.
