The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate he is presently permanently and substantially, mentally and physically impaired.
Findings Of Fact Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” 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 Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would 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 have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam did not sustain 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 post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
Findings Of Fact By stipulation filed January 18, 1994, petitioner and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was [filed] on behalf of the above-styled infant against NICA on behalf of JORDAN KYLES, DENISE DESIR (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, JORDAN KYLES was born at Mercy Hospital on November 1, 1990, and Mercy Hospital was a licensed Florida Hospital and the attending physician, Dr. Luis G. Martinez, was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that a "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that JORDAN KYLES suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his report dated September 2, 1993. A copy of this report has been attached hereto and incorporated herein as Exhibit 1. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon the stipulation, the parties request the hearing officer rule on Petitioners' claim based upon this Stipulation, and the attached medical record. The stipulation and neurological examination of Jordan reveal that he suffered a left brachial plexus palsy injury, and that a brachial plexus palsy injury is not a brain or spinal cord injury and further, does not result in mental injury. Moreover, Jordan's mental functioning is age appropriate and not impaired due to any birth related complications.
