Findings Of Fact Akeem Brown was born on May 15, 2012, at Memorial Hospital Jacksonville in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Akeem’s medical records. In a medical report dated May 14, 2015, Dr. Willis made the following findings and expressed the following opinion: Spontaneous vaginal delivery was apparently uncomplicated. Birth weight was 3,626 grams or 8 lbs. The baby was not depressed. Apgar scores were 8/9. Newborn hospital course appears to be uncomplicated. Progress note on the day after birth recommended routine newborn care. Neurology evaluation at 20 months of age stated the baby had global developmental delay, hypotonia, and hyperreflexia. MRI at about 2 years of age showed bilateral motor cortex hyperintense FLAIR, suggestive of gliosis. A subsequent neurology note stated this finding was likely related perinatal ischemia. In summary, there was no apparent fetal distress during labor. Delivery was uncomplicated. The newborn was not depressed. Newborn hospital course was uncomplicated. The baby was subsequently found to have global developmental delay and an abnormal MRI as described above. There is nothing in the medical records to suggest this brain injury was related to hypoxia or trauma during the birth process. 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 reaffirmed his opinion in an affidavit dated October 31, 2016. Dr. Willis’ 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 in the immediate post- delivery period is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Akeem. Dr. Sigurdardottir reviewed Akeem’s medical records, and performed an independent medical examination on him on October 21, 2015. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Akeem is a 3-year 5-month-old black male who has a possible bilateral hemiplegic cerebral palsy following a fairly uncomplicated pregnancy and delivery. His MRI shows evidence of old hypoxia. After review of fairly extensive maternal records and labor and delivery records, it seems clear that timing his injury is difficult as he did not show any evidence of recent neurologic injury at the time of birth. Although sparse medical records of Akeem are made available to us, such as physical therapy or occupational therapy records, cognitive testing or language assessments and no additional neurologic evaluations are at hand it seems clear that Akeem has relatively spared cognitive abilities. Final result: Results of question 1: The patient is found to have a permanent substantial physical impairment, but to have relatively mild mental impairment mainly in the areas of language. Results of question 2: There is evidence on neuroimaging that Akeem’s difficulties could relate to hypoxic neurologic injury, but no clear evidence to suggest the timing of such an injury and, therefore, it cannot be established that it occurred in the immediate perinatal period. Results of question 3: We would expect full life expectancy, although a guarded prognosis for motor recovery and likely ongoing disability from his significant bilateral hemiplegia. We expect favorable recovery in areas of cognition and language. In light of the above-mentioned details, difficulty with clear timing of Akeem’s injury, we do not recommend Akeem 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 November 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 while Akeem has a substantial physical impairment, he has a relatively mild mental impairment, mainly in the area of language, 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 Akeem does not have a substantial mental impairment.
Findings Of Fact Wyatt Cooper was born on July 21, 2015, at Highlands Regional Medical Center in Sebring, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Wyatt's medical records. In a medical report dated December 15, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor at 37 weeks was complicated by a non-reassuring FHR pattern during labor, followed by a shoulder dystocia at delivery. The newborn was depressed with Apgar scores 1/3/6/6/7. Blood cultures were positive for E. coli. Respiratory distress at birth progressively worsened and required ECMO. The newborn hospital course was complicated by multisystem organ failures. MRI was consistent with encephalomalacia. The cord blood pH of 7.25 seems somewhat inconsistent with the FHR pattern prior to delivery, a shoulder dystocia at birth and low Apgar scores of 1/3. The baby had E. coli sepsis, presumably prior to birth. Sepsis could account for the fetal tachycardia and decreased FHR variability during labor. Clinically, it would be reasonable that oxygen deprivation occurred during labor and delivery and continued into the post delivery period. If the cord pH is correct, it would suggest the oxygen deprivation occurred more likely during the immediate post delivery period. In either case, oxygen deprivation occurred during the post delivery period and the oxygen deprivation resulted in brain injury. There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain, primarily during the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. E. coli sepsis would likely be a contributing factor for the oxygen deprivation and brain injury. Dr. Willis' opinion that there was an obstetrical event that resulted in loss of oxygen to the baby's brain primarily during the immediate post-delivery period which resulted in brain injury is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Wyatt. Dr. Duchowny reviewed Wyatt's medical records and performed an independent medical examination on him on March 8, 2017. Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Wyatt's neurological examination reveals evidence of generalized hypotonia, borderline expressive language delay and evidence of high activity level and short attention span. There are no focal or lateralizing findings. I have not yet had the opportunity to review medical records and will issue a final report once the review process is complete. Following his review of medical records, Dr. Duchowny wrote an Addendum dated March 14, 2017, which amended the above- referenced independent medical evaluation report. The addendum reads in pertinent part: Wyatt remained in the newborn nursery for a total of 65 days. His course was obviously extremely complicated with many risk factors for overall development. However, Wyatt does not have a substantial motor impairment, and his neurological deficits were likely acquired after birth. I am therefore not recommending consideration for inclusion in the NICA program. Dr. Duchowny's opinion that Wyatt does not have a substantial motor impairment is credited. In order for a birth-related injury to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (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. 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 Wyatt does not have a substantial motor impairment. While Wyatt has neurological deficits, these deficits do not render him permanently and substantially physically impaired.
Findings Of Fact Brandon Santiago was born on January 28, 2008, at Health Central in Ocoee, Florida. Brandon weighed 2,750 grams at birth. NICA retained Donald C. Willis, M.D., as its expert in maternal fetal medicine. After having reviewed the medical records of Brandon and his mother, Dr. Willis opined in an affidavit dated June 26, 2013, as follows: The fetal heart rate (FHR) monitor tracing during labor was not available for review. However, the operative report stated “repetitive variable decelerations to the 60’s" were present. Cesarean section delivery was done for the abnormal FHR pattern and failure to progress in labor. Amniotic fluid was clear at delivery. Birth weight was 2,750 grams. The newborn was not depressed. Apgar scores were 7/9/9. Cord blood gas did not suggest acidosis. The pH was 7.26 with abase [sic] excess of only -3. Decreased fetal tone was present after birth and attributed to maternal MgS04 administration during labor. The baby had an uneventful hospital course and was discharged home two days after birth. Subsequently, the baby was noted to have poor muscle tone and developmental delay. Genetic evaluation was done but no obvious genetic condition was identified. In summary, Cesarean section was done for abnormal FHR pattern. The baby was not depressed at birth. Decreased muscle tone was noted, but otherwise the newborn hospital course was uneventful. The baby was discharged home with the mother two days after birth. These findings do not suggest oxygen deprivation during the birthing process. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to Brandon Santiago’s brain during labor, delivery, or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Brandon and reviewed his medical records. In an affidavit dated July 9, 2013, Dr. Duchowny opined as follows: Brandon’s neurological examination reveals evidence of severe motor delay with virtually no progress past the newborn level. This disorder affects all limbs in a symmetric fashion and has likely compromised his bulbar musculature, as well. Cognitive testing is difficult to assess due to the profound motor impairment. A review of the medical records confirms his mother’s impression of only transient difficulties at birth and in fact, Brandon was born only with a brief period of absent respirations which responded immediately in the delivery room. His Apgar scores were 7, 9, 9 at 1, 5, and 10 minutes and Brandon’s hospital course stabilized rapidly allowing him to be discharged on the second day of life. These facts do not support the acquisition of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor or delivery. While Brandon does evidence a substantial motor impairment, he is likely suffering from an unknown neuromuscular disorder. The history of seizures obviously suggests that the underlying diagnosis also involves the central nervous system and is therefore more complex, but his caretakers have so far been unable to ascertain a definitive diagnosis. * * * It is my opinion that BRANDON SANTIAGO does have a substantial motor impairment. However, I do not regard Brandon’s neurological presentation as consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post- delivery period in the hospital during the birth of BRANDON SANTIAGO. I, therefore, do not believe that BRANDON SANTIAGO is compensable within the NICA program. A review of the file does not show any opinions contrary to the opinions of Dr. Duchowny and Dr. Willis that Brandon did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period are credited.
The Issue The issue in this case is whether Landon Ibasfalean suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Jessica and Cody Ibasfalean are the natural parents of Landon Ibasfalean. Landon was born a live infant at Lakewood Ranch Medical Center, a licensed hospital in Bradenton, Florida, on November 21, 2011. The physician providing obstetrical services at the time of Landon’s birth was Jennifer Swanson, M.D. At all material times, Dr. Swanson was a participating physician in the Florida Birth-Related Neurological Compensation Plan. NICA notice is not at issue as to Dr. Swanson or Lakewood Ranch Medical Center in this proceeding. Landon weighed in excess of 2,500 grams at birth. The parties are in agreement that Landon suffered an injury to his brain. The parties, however, disagree as to the timing and cause of that injury, and, specifically, whether such injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. The Petitioners and Intervenors take the position that Landon’s brain injury was caused by oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Respondent contends that Landon’s brain injury was more likely than not prenatally acquired. Petitioner Jessica Ibasfalean was admitted to Lakewood Ranch Medical Center on November 21, 2011. Her labor began around 0635 and her membranes were artificially ruptured at 0715. Mrs. Ibasfalean labored from 0700 to 1708 when the decision was made to perform a C-Section. Landon was born via C-Section at 1757. Cephalopelvic disproportion and tachycardia occurred during labor. Intervenor, Dr. Swanson, performed a C-Section. During the C-Section, Landon’s head was stuck in his mother’s “very narrow pelvis” and meconium stained amniotic fluid was noted. Dr. Swanson’s operative note stated that the C-Section events lasted approximately nine minutes. Landon’s APGAR scores were 2 (one minute), 5 (five minutes), and 7 (ten minutes). The cord pH was 6.9. Landon was intubated upon delivery, suctioned, and bagged with 100% bag mask valve. Landon was admitted to the NICU immediately after delivery for perinatal distress. He was observed at 0658 on November 22, 2011, to have seizure activity. Landon was then transferred to All Children’s Hospital. His discharge diagnoses from Lakewood Ranch Medical Center were hypovolemia (resolved), metabolic acidosis (resolved), respiratory distress (resolved), meconium stained amniotic fluid, sepsis, perinatal asphyxia, and at risk for seizures. Landon was treated at All Children’s Hospital where he was treated from November 22, 2011, through December 5, 2011. While at All Children’s Hospital, Landon received a cranial CT scan, a video EEG, and a brain MRI. Landon’s Discharge Summary from All Children’s Hospital lists the following: hypoxic ischemic encephalopathy, history of seizures, anemia, patent foramen ovale, and subgaleal bleed under the category of “Active Diagnoses at Time of Discharge.” Landon was discharged from All Children’s Hospital on December 5, 2011, with prescriptions for Phenobarbital 6.5 mg PO twice daily and Poly-vi-sol with iron 1 ml PO once daily. Landon is no longer on these medications. NICA retained Donald C. Willis, M.D.,1/ to review Landon’s medical records. Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records for the above individual. The mother, Jessica Lynn Ibasfalean was a 26 year old GI with an uncomplicated prenatal course. She was admitted to the hospital at 39 weeks for induction of labor due to advanced cervical dilation at term. Her cervix dialated 6 cms at the time of hospital admission. The fetal heart rate (FHR) monitor tracing during labor was reviewed. The baseline FHR was 150 bpm on admission with normal heart rate variability. Variable FHR decelerations with uterine contractions began about 4 hours after admission. The FHR dropped to about 90 bpm with contractions. The decelerations became more prolonged with a slow recovery to baseline about 2 hour[s] prior to delivery. A baseline tachycardia of 180 bpm was present when the FHR monitor was removed for delivery. Delivery occurred about 30 minutes after the FHR monitor was removed. After being complete and pushing for two hours, Cesarean section delivery was done for failure to progress and a non-reassuring FHR pattern. Birth weight was 3,202 grams (7 lbs 1 oz). The baby was depressed at birth. Apgar scores were 2/5/7. Cord blood gas was consistent with acidosis with a pH of 6.9. The newborn had no respiratory effort, no tone and poor color. Intubation was done for meconium with meconium present below the vocal cords. This was suctioned. Bag and mask ventilation was given for 4 minutes, followed with blow-by oxygen. The baby’s first cry was at 7 minutes. The baby’s condition was considered unstable upon arrival at the NICU. Color remained pale or cyanotic and muscle tone was poor. The baby was immediately intubated. Chest X-Ray was clear. Respiratory effort improved and the baby remained intubated only 30 minutes. Seizure activity was noted at 13 hours after birth. The baby was transferred from Lakewood Medical Center to All Children’s Hospital for evaluation and management. The baby was diagnosed with hypoxic ischemic encephalopathy at All Children’s Hospital. The initial platelet count was low at 95,000. Platelet transfusions were given. Liver function studies were also elevated. MRI of the brain DOL 7 identified focal areas of ischemia. In summary, an abnormal FHR pattern developed during labor and resulted in delivery of a depressed newborn. The umbilical cord blood pH was 6.9, consistent with acidosis. Seizure activity was noted at 13 hours of life. MRI was consistent with hypoxic ischemic encephalopathy. 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. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury. Dr. Willis’ opinion 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 is credited. When Landon was four weeks old, he was seen by Dr. Joseph Casadonte, a pediatric neurologist. Dr. Casadonte also saw Landon when he was three months, three weeks old. According to Dr. Casadonte’s notes from an assessment on March 14, 2011, Landon did not have any further seizure or seizure-like activity and had been weaned off phenobarbital. Dr. Casadonte examined Landon again on January 27, 2014. Dr. Casadonte’s notes reflect that he informed Landon’s parents that Landon has a mild form of cerebral palsy, and that he is doing very well cognitively. Dr. Casadonte noted that Landon’s gait is normal. On May 22, 2014, at Landon’s 2 1/2 year well-child visit, his pediatrician, Dr. Federico Frias, noted that Landon’s fine motor skills and his gross motor skills were abnormal. Dr. Frias also noted that Landon’s language development was normal. Dr. Frias’ notes indicate that he recommended continuation of physical and occupational therapy which, according to Dr. Frias’ notes, he had been receiving once a week. At her deposition on August 27, 2014, Mrs. Ibasfalean confirmed that Landon was receiving OT once a week for one hour and PT once a week for one-half hour. He has the ability to feed himself, can use a spoon, and can drink from a sippy cup, as long as it has a straw. She testified that Landon does fall but it has become “less and less.” Landon is an active child and enjoys throwing balls for the family dog to catch. He can put his arms inside his sleeves when he is being dressed. He can pull off his socks and shoes. When asked whether any physician had ever told her that in the future it is more likely than not that he will have any mental impairment or cognitive delays, Mrs. Ibasfalean replied, “They never told me that, no.” At his deposition also taken on August 27, 2014, Mr. Ibasfalean was asked if he had observed any cognitive deficit or shortcomings regarding Landon. Mr. Ibasfalean replied “No. Cognitive is pretty appropriate.” Respondent retained Michael Duchowny, M.D., to evaluate Landon. Dr. Duchowny is board-certified in pediatrics, neurology with special qualification in child neurology, and in clinical neurophysiology. He is a senior staff attending in neurology at Miami Children’s Hospital where he directs the Comprehensive Epilepsy Center and neurology training programs. Dr. Duchowny holds the position of professor, clinical professor of neurology and pediatrics at the University of Miami School of Medicine and clinical professor of neurology at the FIU College of Medicine. Dr. Duchowny reviewed Landon’s medical records and performed an independent medical examination on Landon on April 9, 2014. Dr. Duchowny made the following findings and summarized his evaluation as follows: MEDICAL HISTORY: Landon is a 2-year-old boy who, according to his parents, has been diagnosed with “mild cerebral palsy.” They noted that Landon has left-sided weakness affecting both arm and leg and this affects both his gait and left hand and arm movement. However, despite his weakness, Landon runs and walks on his own, and his parents are “teaching him to jump.” Landon has been fitted with a left ankle brace which he wears throughout the day. He has intermittently worn a left hand splint to “keep his left thumb out.” Landon has always been a right-hander but can use his left hand to manipulate objects. In terms of motor development, Landon walked independently at age 13 months, crawled at 10 months and stood at 11-12 months. His gait is now stable and he does not fall excessively, although he is slightly clumsy. His parents have noted that Landon’s hips move “from side-to-side” and that he prefers sitting in a “W” position. There has been no motor regression and he continues to make solid progress. Landon’s speech has been exemplary. He began speaking independently with single words at age 6-7 months and he is now able to speak in short sentences. Landon knows his letters, colors, and shapes and has a good understanding of spoken language. His parents believe he “can recognize some words.” He has never had speech therapy. Landon receives both physical therapy and occupational therapy once weekly for a 90- minute session. This is administered at the Brandon Outpatient Center of All Children’s Hospital. Landon’s vision and hearing are good. He has had hearing testing on two occasions with normal results. His appetite is stable and he is a good eater. Landon sleeps through the night and gets approximately 10-12 hours per sleep nightly with an additional nap daily. Landon is on no intercurrent medications. He experienced seizures 12 hours after birth in the Newborn Intensive Care Unit (NICU) treated with Ativan, phenobarbital and phenytoin. Phenobarbital was discontinued at age three months and phenytoin was discontinued at time of hospital discharge. He has never had subsequent seizures. He does have allergies to both food and environmental factors. * * * NEUROLOGIC EXAMINATION reveals Landon to be alert, pleasant and cooperative. He is somewhat overactive and socially inattentive but participates fully in the examination. He smiles frequently and is playful. Landon maintains an age appropriate stream of attention and answers questions with 2-3 word phrases. He appeared to appreciate all social interactions. The speech sounds are fluent and well articulated. There is no drooling. Motor examination reveals evidence of an asymmetry of movement characterized by diminished left-sided movement, primarily in the upper extremity. There is diminished arm swing when walking but a full passive range of motion without contractures or atrophy. There are no fasciculations or adventitious movements. Landon grasps an object with his right hand easily and has good fine motor coordination and thumb-finger opposition. In contrast, he prefers grasping with the right hand but easily grasps with the left and performs individual finger movements. When he grasps an object, he tends to transfer readily to the right side. He crosses the midline with his right hand unless an object is moved laterally to the left side. * * * In summary, Landon’s neurologic examination reveals mild left hemiparesis with relatively preserved functionality and range of motion. He ambulates well, is motorically stable and evidences no obvious weakness. His cognitive level of functioning is at age level without evidence of mental impairment. I had an opportunity to review records which were sent on February 5, 2014. They confirm the parent’s history of perinatal problems but provide no clear history of a hypoxic insult. Landon’s CT scan of the brain on November 22nd revealed only extra-axial hemorrhage (outside brain tissue) and an MRI obtained on November 28, 2011 revealed multiple small areas of signal abnormality on diffusion weighted images consistent with focal ischemic events. These findings are inconsistent with a hypoxic ischemic event and do not suggest a mechanical injury. I therefore do not believe that Landon should be considered for compensation within the NICA program. He does not have a substantial mental or motor impairment and his perinatal course is inconsistent with neurological injury to the brain or spinal cord resulting from oxygen deprivation or mechanical injury. He further noted in his report that Landon’s gait is stable and explained further in his deposition taken on September 23, 2014: “when I looked at him walking, I thought he walked in a stable fashion, but there was a tendency, when he started running, to position the ball of his foot down, and that is slightly clumsy, yes. . . . But he certainly didn’t fall, and he wasn’t—he could certainly ambulate quite well despite this.” Dr. Duchowny was asked if his independent medical examination of Landon supported the parents’ statements that Landon had mild CP. He replied, “I would say, not really, no. I guess I would just say it would be very mild CP. I guess I would put it that way. He does have some motor findings. If you had to classify it, I think it ultimately would come under the heading of CP, but it would be very, very mild.” When asked during his deposition about the parents’ disclosure that Landon crawled at 10 months, stood at around 11, and walked at 13 months, Dr. Duchowny opined that, “these are normal milestones.” When asked during his deposition if he found no evidence of mental impairment, Dr. Duchowny replied, “That’s correct.” Dr. Duchowny’s opinion that Landon does not have a substantial, permanent physical and mental impairment is credited. Dr. Duchowny’s opinion that Landon’s injury is inconsistent with a hypoxic ischemic event and is inconsistent with neurological injury to the brain or spinal cord resulting from oxygen deprivation is at odds with Dr. Willis’ opinion regarding the same issue.2/ Dr. Willis’ opinion that Landon’s injury was consistent with hypoxic ischemic encephalopathy is consistent with the diagnosis at Landon’s discharge from All Children’s Hospital where he received a CT scan, a video EEG, and an MRI. The greater weight of the evidence establishes that that there was an apparent obstetrical event that resulted in loss of oxygen to Landon’s brain during labor, delivery and continuing into the post-delivery period that resulted in brain injury. Here, the stipulated record demonstrates, along with Dr. Duchowny’s expert opinion, that Landon is not permanently and substantially mentally impaired. While Landon has some motor deficits, these deficits do not render him permanently and substantially physically impaired.
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.
