The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. 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. The baby has a genetic or chromosome abnormality, Down syndrome. 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. The opinion of Dr. Willis that Reshnaya did not suffer an 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 is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation 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. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
Findings Of Fact Petitioners are the parents and legal guardians of Aaliyah. On March 30, 2019, Ms. Harrison gave birth to Aaliyah, a single gestation of 37 weeks, at the Hospital. Aaliyah was delivered by cesarean section and weighed 2,700 grams. Yasmine Kareem, M.D., provided obstetrical services and delivered Aaliyah. The undisputed record evidence consists of affidavits and reports of two physicians: Donald Willis, M.D., a board-certified obstetrician; and Luis Bello-Espinosa, M.D., a board-certified pediatric neurologist who conducted an independent medical examination (“IME”) of Aaliyah. Dr. Willis reviewed the medical records and summarized his opinions about Aaliyah’s delivery and the attendant complications in a report dated January 11, 2021. Dr. Willis noted that Ms. Harrison was admitted to the Hospital due to worsening chronic hypertension at 37 weeks’ gestational labor. After two days of cervical ripening and induction, during which Aaliyah’s fetal heart rate became decelerated, a Cook Balloon was placed to assist cervical dilation. At that point, a prolapsed umbilical cord was noted, and a caesarian section was performed. At birth, Aaliyah was flaccid with no respiratory effort. The Hospital administered bag and mask ventilation for over three minutes. Her APGAR scores were three at one minute, five at five minutes, and nine at ten minutes. Aaliyah was taken to intensive care, placed on a machine for respiratory depression, and underwent body cooling for suspected hypoxic- ischemic encephalopathy (“HIE”). An MRI performed five days after the birth revealed subtle changes suggestive of HIE, though Aaliyah did not suffer multi-organ failure and an EEG performed six days after her birth was normal. Aaliyah was subsequently diagnosed with global developmental delay. Based on the medical records, Dr. Willis opined to a reasonable degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain likely occurred during the birth, but it was unlikely that such an event caused a brain injury. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Aaliyah, and summarized his opinions in a report dated February 7, 2021, as to whether Aaliyah suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. Dr. Bello-Espinosa noted that Aaliyah was diagnosed with mild HIE at birth and that an MRI conducted on the fifth day after her birth indicated subtle changes suggestive of hypoxic-ischemic injury. However, Aaliyah’s EEG was normal, she did not suffer neonatal seizures, and her neurological examinations rapidly improved after birth. Dr. Bello-Espinosa conducted an IME on February 5, 2021. Aaliyah’s neurological examination demonstrated developmental language and motor impairments, stereotypic behavior, poor joint attention, and poor play skills for her age. However, Dr. Bello-Espinosa did not find signs of upper or lower motor neuron dysfunction that would suggest cerebral palsy. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a reasonable degree of medical probability that Aaliyah suffers from substantial and permanent mental impairment but only moderate and gradually improving physical impairment, which probably was not permanent. Dr. Bello-Espinosa also opined that Aaliyah’s impairments were not likely due to a brain injury caused by oxygen deprivation during birth and that, instead, an underlying genetic condition should be investigated.
