The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1 Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
Findings Of Fact Tobias was born on May 3, 2019, at Memorial located in Pembroke Pines, Florida. The Petition alleges that Suzette M. Rodriguez, M.D., was the medical professional who participated in Tobias's birth. No evidence was presented to the ALJ establishing whether Dr. Rodriguez was a "participating physician" under the Plan at the time Tobias was born. See §§ 766.302(7) and 766.314(4), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Michael S. Duchowny, M.D., a pediatric neurologist, to review Tobias's medical records and condition. NICA sought to determine whether Tobias suffered a "birth-related neurological injury" as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Tobias experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period. And, if so, whether this injury rendered Tobias permanently and substantially mentally and physically impaired. Dr. Willis reviewed Tobias's medical records and opined, within a reasonable degree of medical probability: The maternal history of decreased fetal movement prior to delivery and an abnormal [fetal heart rate] tracing for admission with no acidosis on the initial blood gas studies would be most consistent with a stroke (brain injury) occurring prior to birth. There was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery. The baby suffered a stroke due to an occluded right carotid artery. It appears this event occurred prior to delivery. The mother was not in labor. Dr. Duchowny also reviewed Tobias's medical records, as well as personally examined Tobias (via Zoom video conference) on December 22, 2020. Dr. Duchowny noted that: Tobias was diagnosed with cerebral palsy at age 1 year. He has extremely limited motor functions although his left hand is better than his right. He moves all limbs but none are functional. * * * Tobias had seizures in the NICU and remains on anti-seizure medications. He was formerly suspected of having infantile spasms but his EEG did not reveal hypsarrhythmia. * * * Tobias has not encountered respiratory difficulties or pneumonia. He has not been hospitalized since birth. His head has grown normally. * * * In summary, Tobias's examination reveals findings consistent with a substantial mental and motor impairment. He has four-limb spasticity, greater on the right, axial hypotonia, generalized hyper- reflexia with pathological reflexes and absent verbal communication. * * * A review of Tobias's medical records reveals that he was born at Memorial West Hospital at 38 4/7 week's gestation. His mother had noted decreased fetal movement the day before admission and presented for evaluation. Following a non- reassuring fetal heart rate assessment Tobias was delivered by Caesarian section. He weighed 2.87 kg. at birth and had Apgar scores of 4, 5, and 9 at 1, 5 and 10 minutes of life. * * * Seizures were noted on the first day of life and treated with Keppra and phenobarbital. Tobias was discharged from the NICU after two weeks. * * * An MRI scan of the brain obtained on May 4th (DOL # 1) revealed diffuse [Hypoxic Ischemic Encephalopathy] findings involving both cerebral hemispheres in the right and left anterior and middle cerebral artery and the right internal carotid territories. … Follow-up MR imaging revealed the presence of a thrombus in the right common and internal carotid arteries with decreased flow in the right middle cerebral artery and stenosis of the left middle cerebral artery with retrograde perfusion of the right internal carotid artery. Following his independent medical examination, Dr. Duchowny opined, within a reasonable degree of medical probability, that, "Despite Tobias's substantial delays, a review of the medical records reveals that his deficits were likely acquired prior to birth and were not due to mechanical injury or oxygen deprivation during labor, delivery, or the post-delivery period." Therefore, Dr. Duchowny concluded: "I am not recommending that Tobias be considered for inclusion into the NICA program." A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their opinions are credible and persuasive.
