Findings Of Fact Nina Udenze was born on April 19, 2013, at Memorial Hospital in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Nina's medical records. In medical reports dated February 8 and March 12, 2016, Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records, pages 1-505 for the above individual. The mother, . . . was a 34 year old G3 P2002 with a twin pregnancy. Nina was the B twins [sic]. The mother had a history of two prior Cesarean deliveries. * * * Repeat Cesarean section was done in early labor. Fetus B (Nina Udenze) was in a transverse lie. The baby was converted to breech and delivered. Birth weight was 2,152 grams (4 lbs 11 oz’s). Apgar scores were 6/9. The baby initially had a poor respiratory effort and required bag and mask ventilation for 45 seconds with good response. Apgar score was 9 by five minutes. The baby was taken to the NICU. The operative note indicated cord blood gases were done for both babies. However, only one cord blood gas result was seen in the available records (page 298). It was not labeled A or B and was apparently a venous sample. The pH was normal at 7.31 with a BE of -5. Hospital discharge was on DOL 4. The baby failed the newborn hearing test. Placental pathology was normal. There does not appear to be a birth related hypoxic brain injury based on available, but medical records are limited. No head imaging studies were available. It would be helpful if we could get the cord blood gas for fetus B. Thank you for allowing me to review this case. I will be available to review any additional records if they become available. Specifically, any head imaging studies and the cord blood gas for fetus B would be helpful. * * * Additional medical records were reviewed for the above individual, which included two MRI studies. The first MRI was done at about 8 months of age. A posterior fossa cyst was identified as well as findings suggestive of cerebral volume loss. MRI of the spine on the same day showed scoliosis. A follow-up MRI was done at about 2 ½ years of age, again identified the posterior fossa arachnoid cyst and also described partial absence of the Falx. It is also my understanding a cord blood gas for this child was not done at birth. The cord blood gas in the medical records was for the twin sibling. The additional medical records do not change the opinion given in the previous letter dated 02/08/2016. There does not appear to be a birth related hypoxic brain injury or mechanical trauma resulting in brain or spinal cord injury. In an affidavit dated April 1, 2016, Dr. Willis reaffirmed his ultimate opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis was deposed on May 26, 2016, wherein he testified in pertinent part as follows: Q. Okay. Do the records show that any mechanical devices such as forceps or vacuum extractions was used in the delivery? A. No. Q. You also note that her apgar scores were six and nine. Could you explain what an apgar score is? A. Yes. The apgar scores are given to the babies for a couple of reasons. The apgar score, the first apgar score is at one minute. And apgar scores can be anywhere from zero to ten. And the apgar score at one minute tells you how much resuscitation the baby requires at time of birth. An apgar score of seven or above would be considered normal. An apgar score below seven would be considered low. The one- minute apgar score is six. So, it was slightly lower than expected. However, by five minutes, the apgar score was nine, which would be a very good score showing that the baby transitioned well after birth. Babies that have significant oxygen deprivations during time of delivery, usually it takes a longer time for them to transition and recover. The baby seemed to recover fairly quickly. Q. Had there been oxygen deprivation at the time of delivery, what types of symptoms would you expect to see? A. Babies that have significant oxygen deprivation during the birthing process will be depressed and require resuscitation. They usually have respiratory distress. So, they’ll need some type of oxygen bag, mask ventilation, intubation. And then they will go to the neonatal intensive care nursery at -- which sometimes they will often have abnormalities in many of their different organ systems. For instance, seizure disorders are very common after brain injury at time of birth. You can also have renal failure, elevated liver function studies, blood clotting abnormalities. So, babies that have significant oxygen deprivation at birth will usually have some combination of these problems in the nursery. A baby that goes to the nursery and has a relatively benign newborn course in the nursery would not be consistent with significant oxygen deprivation during labor or delivery. Q. And in Nina’s case, what did the records indicate regarding her newborn course? A. The newborn course looked pretty uncomplicated. In fact, the newborn records pretty much just show normal newborn care, no significant problems in the newborn period. And the baby was discharged home on the third day of life. So, no prolonged hospital stay. * * * Q. All right. And based on your second letter dated March 2016, which is Exhibit 3, your final opinion was that there does not appear to be a birth-related hypoxic injury or mechanical trauma resulting in brain or spinal cord injury. Is that still your opinion today? A. That’s correct. Q. During your review of the medical records, did you find that Nina Udenze suffered oxygen deprivation occurring in the course of labor/delivery or resuscitation in the immediate postdelivery period that would have resulted in brain injury? A. No. Q. During review of the medical records, did you find that Nina Udenze suffered a mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period that would have resulted in brain injury or injury to her spinal cord? A. No. Q. And have your opinions today been rendered within a reasonable degree of medical certainty? A. Yes. Dr. Willis' opinion that there was no 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, is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Nina. Dr. Duchowny reviewed Nina's medical records and performed an independent medical examination on her on February 3, 2016. In an affidavit dated April 4, 2016, Dr. Duchowny made the following findings and summarized his evaluation as follows: It is my opinion that: In SUMMARY, Nina's neurological examination reveals findings consistent with a substantial mental and motor impairment. Although Nina is walking, her gait is unstable with abnormal motor functioning and hyerreflexia. Her epicanthal folds were acquired prenatally and her unilateral hearing loss is unexplained. She also has microcephaly. A have had an opportunity to review the medical records which were sent on January 28, 2016. They reveal that Nina’s mother went into labor at 36 weeks gestation after experiencing spontaneous rupture of her membranes. Nina and her fraternal twin brother were delivered by urgent cesarean section. The fetal heart rate was stable. Nina was 4 pounds 11 ounces at birth and had 1 and 5 minute Apgar scores of 6 and 9. She required positive pressure ventilation for 45 seconds but then stabilized and did not experience subsequent respiratory complications. There was no evidence of multiorgan system involvement. Nina was discharged from Memorial Hospital Jacksonville on the 5th day of life. The medical records do not include the results of brain imaging studies. Before making a final determination, I would request to review the salient imaging studies. * * * I have now reviewed neuroimaging studies including MR brain imaging. The images do not reveal findings consistent with either an intra-partum hypoxic-ischemic insult or a mechanical injury. It is my opinion that together with the record review and neurological evaluation, the imaging findings confirm that Nina did not suffer from a birth-related neurological injury, and I am therefore not recommending inclusion within the NICA program. Dr. Duchowny's opinion that Nina did not suffer from a birth-related neurological injury 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. 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 occurring in the immediate post- delivery period. Dr. Willis’ opinion is credited. Dr. Duchowny’s opinion that, although Nina has a substantial mental and motor impairment, she did not suffer from a birth- related neurological injury, is credited.
The Issue Whether Faith Lapp, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Linda J. Davidson Lapp is the natural mother and guardian of Faith Lapp, a minor. Faith was born a live infant on January 27, 1998, at Arnold Palmer Hospital for Children & Women (Arnold Palmer Hospital), a division of Orlando Regional Healthcare System, Inc., a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Faith's birth were Penny A. Danna, M.D., and Steven Carlan, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Faith's birth At or about 1:25 a.m., January 27, 1998, Mrs. Lapp (with an estimated date of delivery of January 22, 1998, and the fetus at 40+ weeks gestation) presented to Arnold Palmer Hospital, in labor. At the time, Mrs. Lapp's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement complete, and the fetus at -1 station. Contractions were noted as mild, at a frequency of 2-3 minutes, with a duration of 40 seconds, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130 beat per minute range. From 1:25 a.m. until 5:00 a.m., when her membranes spontaneously ruptured, Mrs. Lapp's labor progress was steady, and fetal monitoring continued to reveal a reassuring fetal heart rate. Thereafter, to 7:05 a.m., when vaginal examination revealed Mrs. Lapp complete, monitoring continued to reveal a reassuring fetal heart rate, with a baseline in the 150 beat per minute range, and variable decelerations, with contractions, and a good return to baseline. At 7:20 a.m., Mrs. Lapp was noted as pushing, with contractions, and variable decelerations continued without significant change until approximately 8:40 a.m., one hour prior to delivery, when fetal heart rate decelerations became persistent. Thereafter, at 9:25 a.m., the baby was noted to crown; at 9:34 a.m., the baby was noted as bradycardic with a fetal heart rate in the 70 beat per minute range; and at 9:36 a.m., the baby's head was noted as delivered, with the fetal heart rate continuing in the 70 beat per minute range. Delivery was complicated by a shoulder dystocia, and at 9:38 a.m., the labor and delivery record reveals the baby was not yet delivered, and the fetal heart rate was persisting in the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith was delivered. At delivery, Faith was severely depressed (without respiratory effort, reflex, or muscle tone; a color consistent with central cyanosis; and a heart rate under 60 beats per minute), and required resuscitation (ambu bagging with 100 percent oxygen, cardiac compression for 20 seconds, and intubation). Apgar scores were recorded as 1 and 6, at one and five minutes, respectively,1 and cord pH was recorded at 7.28. Following delivery, Faith was transported to the neonatal intensive care unit (NICU), where she remained until January 31, 1998, when she was discharged to her parent's care. Faith's hospital course was summarized in her Clinical Resume (discharge summary), as follows: History . . . . Term newborn female, birth weight 4449 gm, born on 01/27/98 at APHCW. Mother is a 39- year-old gravida 2, para 1, 0 positive, maternal screens negative, uncomplicated gestation, 40+ weeks gestation, rupture of membranes 4 hr., 40 min. prior to delivery. Difficult extraction, vaginal delivery, epidural anesthesia, nuchal cord times one. During process of extraction, left fracture of the humerus. Baby cyanotic and apneic, heart rate 40-60, Ambu bagged with 100%, cardiac compressions given, intubated at one to 1-1/2 min. of life, with 3.5 cm ET tube, responded with 100% 02 by bagging, re- intubated due to air leak with 4.0 ET tube at 7-10 min. of age. Apgars 1 at one min., 6 at five min., cord pH 7.28, birth weight 4449 gm, temperature 98.8?, Accu-Chek 72, mean blood pressure low 30s. Hematocrit 49%. PHYSICAL EXAMINATION: Alert, molding of the head, bruising of the scalp. Pupils reactive to light. Nose and throat normal. Lungs coarse. No murmur. Abdomen soft. Liver 2 cm below right costal margin. Cord - 2 arteries, 1 vein. Female genitalia. Anus patent. Passing meconium. Spine normal. Left arm with swelling and tenderness at fracture site. Decreased tone and reflexes. Poor perfusion. IMPRESSION: Post mature, 41 weeks female Neonatal depression, post difficult delivery. Aspiration. Rule out sepsis. Hypovolemia. Left humerus fracture. PROBLEM LIST: Problem #1: Post mature, 41 weeks female. Problem #2: Neonatal depression. Infant required 100%, pressures of 23/3 and an IMV of 30; pH 7.4, pCO2 22, PO2 393, base excess -8.1. Weaned and extubated to room air by day one. No apnea nor bradycardia. Monitor discontinued. Problem #3: Rule out sepsis. Treated with ampicillin and gentamicin times 72 hr. Blood culture negative. Problem #4: Fracture of the left humerus. Orthopaedic consult obtained, infant was splinted, now is positioned with left upper extremity pinned across chest and is comfortable. For follow-up with Dr. Topoleski. Problem #5: Neurologic. A CT scan of the head shows some central subdural bleeding along tentorium and falx cerebri, small amount, slightly prominent extra-axial space left temporal region.[2] Problem #6: Miscellaneous. Passed ABR hearing screening exam. Annual follow-up is recommended. Infant screening was done 01/28/97. Problem #7: Fluids/electrolytes/nutrition. Feedings were begun on day 2, and advanced. Infant is tolerating ad lib feedings of maternal breast milk or Similac-20 with iron, and nippling well. Physical examination, 01/31/98: Four days of age. Weight 4555 gm, head circumference 33.25 cm. Pink. Anterior fontanelle soft. No murmur. Lungs clear. Abdomen soft and full. Neurologic appropriate. Left arm positioned as noted above. * * * FINAL DIAGNOSIS: Post term, 41 weeks female. Neonatal depression. Rule out sepsis. Left fractured humerus. Subdural bleeding. Follow-up CT scan on March 25, 1998, showed resolution of the subdural hemorrhage. Specifically, the CT scan was read, as follows: The ventricles are normal in size and configuration. There is no midline shift. The attenuation characteristics of the brain are within normal limits for the patient's age and state of maturity. No extra-axial fluid collections are identified. The hemorrhagic changes described on the study of 01/30 have cleared. IMPRESSION: CT appearance of brain within normal limits. Faith's subsequent development Following discharge from Arnold Palmer Hospital, Faith was followed for a number of evolving irregularities. Pertinent to this case, insight into the complexity of her presentation can be gleaned from some observations by a few of Faith's physicians: Michael Pollack, M.D., a pediatric neurologist; Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn, Jr., M.D., an ophthalmologist. Dr. Pollack initially evaluated Faith on March 30, 1998, and described his impressions, as follows: . . . Parents have observed that the patient does not follow although she appears to respond to light. She has been evaluated by Dr. Gold and Dr Richmond and apparently has retinal detachment . . . . A recent film of the patient's left arm apparently demonstrated that her humeral fracture is healing satisfactorily. * * * A recent CT scan of the head shows resolution of posterior fossa hemorrhage. In addition, the fluid collection over the left temporal region has largely disappeared but the left-sided subarachnoid space does remain larger than the right. Physical examination includes a weight of 14 pounds and a head circumference of 35.5 cm. The forehead appears underdeveloped and the head is small in relation to the face. Anterior fontanel is closed. There is ridging of coronal and sagittal sutures. Slight flattening of the right occiput is present and there is corresponding alopecia . . . . IMPRESSION: Perinatal craniocerebral trauma and probable hypoxic ischemic encephalopathy. Retinopathy by history. Evolving microcephaly versus craniosynostosis: Primary microcephaly (failure of the head to grow because of poor brain growth) appears more likely than craniosynostosis . . . . Dr. Pollack summarized his September 29, 1998, evaluation, as follows: Faith is an 8-month-old girl who was initially evaluated in my office 3/98 because of visual impairment and suspected seizures. Her diagnoses include perinatal craniocerebral trauma and a possible hypoxic ischemic encephalopathy. In addition, she had a congenital retinopathy. Her diagnoses at Bascom Palmer Institute were: (1) congenital bilateral retinal detachment and (2) variation of persistent hyperplastic primary vitreous or persistent fetal vasculature bilaterally. Her MRI scan of the head showed an abnormality of the rostrum of the corpus callosum which was thought to fall in the spectrum of septo- optic dysplasia. Her condition, therefore, appears to be due to a combination of congenital anomalies and perinatal factors . . . . In the past few months, the patient has undergone . . . [repair of metopic synostosis]. Although the shape of her head has improved, her head circumference has remained below the 5th percentile, supporting the view that primary microcephaly rather than craniosynostosis was responsible for the small head size in this patient. In addition, ptosis of the right upper lid developed postoperatively. * * * PHYSICAL EXAMINATION: Includes a length of 26.5 inches, weight 18-3/4 pounds, head circumference 38.5 cm. The head appears small in relation to the face. There is unilateral occipital flattening . . . . IMPRESSION: Severe nonprogressive encephalopathy due to perinatal factors as outlined above and a congenital anomaly of the central nervous system. There is severe visual impairment which is due to a retinal anomaly . . . . Her residual microcephaly suggests that deficient brain growth rather than craniosynostosis was responsible for her small head size . . . . Development is globally delayed. The combination of microcephaly, congenital CNS anomalies, visual impairment and global developmental delay in this patient suggests that she is likely to function in the trainable mentally handicapped range. Her motor attainment to date implies that she will walk independently. Following September 29, 1998, Faith was seen by Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001, during which there was no apparent change in Dr. Pollack's impression. Thereafter, the record suggests that following Faith's last visit with Dr. Pollock, her neurology issues were followed in Miami; however, there is no evidence of record regarding those evaluations, if any.3 Following discharge from Arnold Palmer Hospital, Faith was also seen by Dr. Trumble and had serial workups for craniosynostosis. That diagnosis was rejected July 9, 1998, when "a head CT with 3-D reconstruction . . . revealed all sutures to be open with the exception of her metopic suture, which was supposed to be closed at this age." Faith did, however, have "metopic synostosis with a small palpable ridge," which was repaired on July 29, 1998. Faith apparently did well post-operatively, with the exception of right eye ptosis. Of note, an uncontrasted CT scan was reviewed by Dr. Trumble in March 1999, which he noted: "identifies normal morphology without evidence of increased CSF spaces or definite atrophy." On April 20, 1998, Faith's ophthalmologic problems were evaluated by Dr. Flynn, professor of ophthalmology at Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn described his impressions as follows: . . . [Faith] was examined on 4/20/98 regarding her retinal detachments in both eyes. . . . [The patient] had a traumatic delivery that involved extensive facial, cranial and subconjunctival hemorrhages. The patient has brought with her multiple studies including X-rays, CT scans and other studies that have been reviewed and are present on the chart. The patient is being referred regarding the possibility of any surgical therapy for this patient with bilateral retinal detachments. The ocular examination showed no recordable visual acuity although there did appear to be a response to light in each eye. The pupillary reaction showed a 1+ response to direct light in each eye. The tension by palpation was normal in both eyes. The anterior segment examination showed a white plague-like structure on the back surface of the lens in both eyes. The vitreous cavity was clear with no visible hemorrhage in either eye. The posterior segment examination showed total retinal detachment with dragging of the retina toward the inferior temporal quadrant in both eyes. The retinal folds were drawn forward as well to fibrous tissue inserting on the back surface of the lens. IMPRESSION: Congenital bilateral retinal detachment both eyes. Variation of persistent hyperplastic primary vitreous or persistent fetal vasculature both eyes. RECOMMENDATION: I discussed my findings with the patient [sic] and husband. I indicated that the retinal detachments were inoperable. I indicated that the changes present in the back of the eye could not have taken place in 2 1/2 months in spite of the extent of the trauma at delivery.[4] Apart from the impressions of Faith's treating physicians, some insight into Faith's development may also be gleaned from certain evaluations and testing by the Seminole County Public Schools; including a Report of Adoptive Behavior Testing, dated August 21, 2003. On that test, administered at age 5 years, 7 months, Faith's ability to care for herself and interact with others ("Broad Independence") was measured based on an average of four areas of adaptive functioning: motor skills, social interaction and communication skills, personal living skills, and community living skills. There, Faith's motor skills, which included gross and fine motor proficiency tasks involving mobility, fitness, coordination, eye-hand coordination, and precise movements were said to be comparable to an individual at age 3-1 (3 years, one month). However, the examiner noted the basis for such conclusion, as follows: When presented with age-level tasks, Faith's gross-motor skills are age-appropriate. Age-level tasks involving balance, coordination, strength, and endurance will be manageable for her. When presented with age-level tasks, Faith's fine-motor skills are very limited. Age- level tasks requiring eye-hand coordination using the small muscles of the fingers, hands, and arms will be extremely difficult for her. (Emphasis added.) (Intervenor's Exhibit 4.) Faith's motor skills were also evaluated by the Seminole Public County Schools, and noted in a Physical Therapy Assessment/Evaluation report, dated October 2, 2003, as follows: OBSERVATIONS: Faith was evaluated in a variety of educational settings. She was observed in the classroom, during an obstacle course in another classroom, on the playground and around the school campus. During the obstacle course observation, Faith was participating in tunnel creeping, rockerboard activities, basketball and balance beam walking. Throughout the evaluation, it appeared that Faith had difficulty with some motor tasks due to body and spatial awareness as well as with her speed and intensity of her movements. With this evaluator, Faith followed all directions and seemed eager to please. * * * FUNCTIONAL MOBILITY: Faith ambulates indepen[den]tly in all directions demonstrating a forward lurch, hiking type of gait pattern, head is bent forwards. She is able to walk in the halls, on ramps and on sand on the playground without falling. She is able to creep and knee walk independently. Rises from the floor using a half kneel pattern or through a backwards crab type of pattern. Lowers self to floor with control. Transfers in/out of all chairs independently but teacher reports she often trips over her own feet. Ascends the stairs using a reciprocal pattern without holding the rail, descends using step to step pattern holding the rail. GROSS MOTOR: Faith sits on the floor with good balance in a criss cross position or sidesit position. She low kneels but weight bears on her right side more than her left and high kneels with good balance. She squats to pick an item up off the floor. Is able to jump off the floor and jumps on the trampoline at least 5 times in a row. She is able to walk on the balance beam taking 3 steps independently and attempts to walk backwards on it. On the playground, she is able to climb all structures independently with supervision. Within the school environment, Faith is able to push/pull her exterior doors and turn knobs of all interior doors. FINE MOTOR/VISUAL MOTOR: . . . According to notes from OCPS records, Faith may exhibit some visual motor issues as well as the visual impairment already noted. (Intervenor's Exhibit 4.) Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as in "injury to the brain . . . 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioner and Intervenor are of the view that Faith suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Faith did not suffer a "birth-related neurological injury" since her neurologic impairments are, more likely than not, prenatal (developmental) in origin, and resulted from cerebral malformation, as opposed to brain injury caused by oxygen during labor, delivery, or resuscitation. Moreover, NICA is of the view that Faith is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Faith's impairment To address the cause and timing of Faith's impairments, as well as their significance, the parties offered the records related to Faith's birth and subsequent development, portions of which have been addressed supra (Joint Exhibits 1-4, and Intervenor's Exhibit 2); a color photograph of Faith taken several hours after her birth (Petitioner's Exhibit 1); the deposition of Leon Charash, M.D., a physician board-certified in pediatrics, who practices pediatric neurology (Intervenor's Exhibit 1); the deposition of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibit 1); and the deposition of Michael Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibit 2.) Dr. Willis, whose deposition was offered on behalf of NICA, was of the opinion that the birth records failed to support a conclusion that Faith suffered a brain injury from oxygen deprivation during labor or delivery, but offered no opinion regarding the likelihood of brain injury from oxygen deprivation during the course of resuscitation or from trauma associated with Faith's delivery. Dr. Willis expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. After reviewing the records in this case, do you have an opinion within a reasonable degree of medical probability as to whether or not Faith Lapp qualifies for compensation under the NICA criteria you just described? * * * A. Yes, it was my opinion that there did not appear to be a loss of oxygen that occurred during labor or delivery that would result in this child's injury. * * * Q. Doctor, would you tell us how it is that you reached such an opinion as that? A. Yes. I reviewed the fetal heart rate monitor strips, which do show fetal heart rate decelerations during the latter few hours of labor. Although they're not persistent decelerations until about the last hour before delivery, and then the fetal heart rate tracing does show persistent variable decelerations . . . . The Apgar scores that the baby had were low, the Apgar score was one and six. Of course, the baby had -- there was a shoulder dystocia at birth resulting in a very difficult delivery. However, the umbilical cord blood gas was normal with a pH of 7.28. And the baby had a course in the hospital that did not suggest an ischemic event during labor or delivery. In other words, did not have seizures in the post-delivery period, no other organ failure like renal failure, hypotension, those types of things, and was discharged home on the fourth day. So looking at all of that, I felt there was not oxygen deprivation during labor or delivery. Q. . . . What is the significance of the fetal heart rate monitoring strips? A. Well, the fetal heart rate monitor strips are consistent with some degree of umbilical cord compression or variable decelerations prior to delivery, and all fetuses react differently to that. But certainly if the fetal heart rate decelerations persist and are significant, then it can lead to a baby that has lack of oxygen at birth. * * * Q. Dr. Willis, can you tell us the significance of the cord blood pH which you referenced earlier as being normal at 7.28? A. Right. Well, if a baby is born with a lack of oxygen, then they will have lack of oxygen and acidosis, which the two go together. And if the baby has lack of oxygen acidosis, then the cord pH should be low. If the umbilical cord blood pH is within normal limits, it would suggest that for whatever fetal heart rate decelerations or whatever Apgar scores that were present, that that wasn't a result of or did not cause or was not a result of lack of oxygen to the baby. * * * Q. Would you anticipate the pH to be abnormal if the deceleration that you saw on the fetal heart monitoring strips had continuously occurred? A. Well, the fetal heart rate monitor strip shows you that in a way that the baby is being stressed, but it doesn't really tell you if the baby is in distress. So different babies tolerate different amounts of fetal heart rate deceleration. So the bottom line here was the umbilical cord pH being normal. I felt that I could not say that those fetal heart rate decelerations that were present in that hour prior to birth really resulted in lack of oxygen to the baby. Q. In other words, you would have anticipated the pH score to be abnormal if the infant had been severely affected by the deceleration? A. That is correct. * * * Q. And the significance of the Apgar scores? A. Well, the Apgar score at one minute tells you how much resuscitation is going to be required for the newborn, and the one was simply one point for fetal heart rate. The baby at birth had no spontaneous respiration, it was pale and it was not moving, and the only points that the baby got -- therefore, was depressed at that time, and the Apgar score was one. The one- minute Apgar score is not a very good indicator of long-term neurologic development though. The five- and the 10 minute Apgar scores are better indicators for that. The Apgar score at five minutes was listed at six. That's still low. We consider Apgar score to be low if it is under seven. So a six is just under the cut-off. If the baby had an Apgar score of seven at five minutes, then it would have been considered a normal score . . . . * * * BY MS. LAPP: Q. [D]o you normally . . . [limit yourself as you did in this case]? A. Normally -- normally, in most cases, I don't limit myself as much as I am with your case. Q. You found that my case was -- A. I found it a little bit confusing. If I saw the fetal heart rate tracing that I saw here and the Apgar scores that I saw and if the cord pH was abnormal, or I didn't see a cord pH, then I would have assumed that there would have been hypoxia to this baby at birth. But the fact that the cord pH was so normal, I really have to stop and question that. So then with that -- and this happens in other cases. So with that then, I have to look and see what else. And from doing this for several years and practicing in my subspecialty, I know that babies that have hypoxic injury to the brain at time of birth or during labor frequently have seizures during the first hour or two after birth and many of the other things that we've talked about. So, for instance, if your baby would have had a seizure disorder an hour or two hours after birth and would have been hypotensive, I might have in that circumstance decided that I would have simply ignored the cord pH result because it wouldn't have fit everything that I see. Q. Could it be possible that . . . [it was] human error . . . ? A. That is why I look at many different things. Again, if I would have seen other things that would have been consistent with hypoxic injury to the brain at birth, then I would have said I am going to discard this cord pH because it just doesn't fit the rest of the picture. And so that is the reason I kind of limited myself to labor and delivery, because the baby is depressed after birth, and I really can't explain that. * * * Q. . . . When would she have had these seizures? A. It would have been after birth, relatively in a short period after birth. I guess what I'm trying to say is from a maternal fetal standpoint, the medicine that I practice, if I see a poor fetal heart rate tracing and a baby with low Apgars and then seizures two hours after birth and then a CT scan done at five or six days of life which shows a cystic structure -- shows maybe brain edema consistent with hypoxic injury, then that all becomes a very, very clear picture for me. In this case, unfortunately, the picture just was not so clear. Because of that, I wanted to limit myself to labor and delivery because I could not make such a clear picture of what happened after that. (Respondent's Exhibit 1.) Dr. Duchowny, whose deposition was also offered on behalf of NICA, was of the opinion, based on his review of the records and his neurologic evaluation of Faith on March 12, 2003, that Faith's impairments, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation during labor, delivery, or resuscitation, and that, regardless of the cause, Faith was not permanently and substantially mentally and physically impaired. Dr. Duchowny expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. Could you tell me, after reviewing the records concerning the records of both Linda Lapp and also Faith Lapp, your review of all the records you've just named and your examination of Faith Lapp, if you have reached an opinion which is in the reasonable degree of medical probability as to whether or not Faith Lapp sustained permanent mental and physical impairment as a result of her labor and delivery? A. Yes. I believe that Faith does not have a substantial mental or motor impairment and that her neurologic disabilities were acquired in utero and not the result of a birth related neurological injury that occurred during labor, delivery or resuscitation in the immediate post delivery period. Q. Could you tell me what you base that opinion on, Doctor? A. That opinion is based on the medical records which indicated that Faith's labor and delivery were complicated by a fractured left humerus, but that her cord blood pH was normal; her Apgar scores of 1 and 6 were reasonably good; that she did not have findings in the post natal period which are consistent with either mechanical injury or severe hypoxia; and that her evaluations, including my examination, all suggested that the types of neurologic disabilities that she has resulted from developmental abnormalities which occurred during the time that the brain was forming in interuterine life. Q. Doctor, in examining Faith's records, would you comment on the blood cord results? A. Well, her cord pH of the blood gas was 7.28, which is essentially normal. There is no indication of any hypoxia at that point in time when the blood gases were drawn from the cord. Q. Would you comment--you said earlier that her Apgar was relatively normal at 1 and 6. What did you mean by that? A. An Apgar score of 1 at one minute is not an unusual finding in normal deliveries. It reflects obstetrical medication; and I think the important Apgar score is at five minutes, which for Faith was 6. While not being perfect, it certainly is a decent Apgar score and inconsistent with asphyxia. * * * Q. Well, you indicated after that, if I heard you correctly, that you didn't see any post delivery signs of hypoxia. A. That's correct. Faith did require some ventilatory support for the first day, but she never developed systemic signs of hypoxia, which might produce abnormalities of her heart, liver, kidney, lungs, or cardiovascular system. * * * Q. You indicate further that there was no evidence of mechanical injury. Could you tell us for the record what you mean by "mechanical injury?" A. Well, there was no evidence of mechanical injury to the central nervous system, meaning there was no trauma to the brain or spinal cord. Faith did have a left Erb's palsy, which indicates dysfunction in the brachial plexus. I believe this was mechanically induced, but it was outside the central nervous system. * * * Q. Let's now turn to your opinion that Faith does not suffer from a substantial and permanent mental or physical impairment. Could you comment on the reasons why you believe that to be your opinion? A. Yes. At the time that I evaluated Faith last March, she was five years old. She did have a short attention span, and she was an overactive child, but she was able to talk. Albeit with a speech delay, she was able to talk. In fact, could speak in short phrases. She seemed to be socially appropriate. And with some effort, one could actually complete the examination because there would be some interaction between Faith and myself. She wouldn't cooperate for all testing but much of the testing did in fact get done. * * * BY MR. THOMPSON: * * * Q. . . . [Y]ou . . . [agree] that you believe there are neurologic abnormalities. Correct? A. Yes. Q. When you say that they were acquired in utero, you think that those were something that developed prior to the birthing process? A. Yes. Q. Is that what you mean? A. Yes. Q. Do you have a name for whatever that process was that caused that? A. I believe it is cerebral malformation. Q. And is that a chromosomal problem? A. Not usually. Q. What's usually the cause of that? A. Unknown interuterine acquired factors. Q. You have stated that you agree that there were mechanical injuries to this child during the labor and delivery process, correct? A. Yes. Q. You said one evidence of that was the fractured humerus. Correct? A. Yes. Q. She had some abnormalities on CT scan, I believe, some sort of--I can look for it, but you may remember what it was. I've got it right here. "A central subdural bleeding along the tentorium and faux cerebrum of a small amount." Do you recall that CT scan of the head that was taken shortly after her birth? A. Yes. Q. Would you agree that that was the result of a mechanical injury to her head? A. Yes. * * * Q. Would you agree that the pH of 7.28 in the cord blood may not represent what her true level of acidosis was? A. No, I wouldn't agree with that statement. Q. Could that be a lab error? * * * A. Well, anything is possible; but given the Apgar score and given her ultimate clinical findings, I regard that cord blood pH as being accurate. Q. What do you account for her being cyanotic? A. She already had brain dysfunction in utero. So, if you take a newborn, whose brain is not normal, and you provide stress, their response is often abnormal. Q. . . . Would you agree that Faith's laboratory work after her birth did show evidence of problems with her liver? A. No. Q. Are you familiar with what her LDH was? A. Yes. It was elevated, but the rest of her liver functions were normal. Q. Was her AST normal? A. I would have to check. I don't believe it was significantly elevated. Q. Was her ALT abnormal? A. Again, there were mild elevations that I don't think were significant, as I recall. Q. I may have asked you this. I apologize if I have. You do agree that her hydrocephaly is a result of secondary atrophy, as opposed to some other reason? A. No, I don't agree with that. Q. But you disagree with Dr. Trumbull [sic] when he said that in his report of July 9th, 1998?[5] A. Well, you would have to ask Dr. Trumbull [sic] what he meant by that. But my understanding is that there were findings, there were abnormalities, but they would not be classified as atrophy. It would really be failure to develop, which is different. Q. How can you distinguish between atrophy and failure to develop? A. Well, atrophy implies at one point all the brain structures were normal, and then something happened to damage those structures. Developmental problems imply that they never developed correctly in the first place so they never assumed normal proportions. The findings that Faith had on her MRI are more consistent with developmental abnormalities to her brain, so I would not classify them as atrophy. (Respondent's Exhibit 2.) Dr. Charash, whose deposition was offered by Intervenor, and whose testimony was supportive of Petitioner's claim, did not examine Faith, although he was accorded the opportunity to do so,6 but based on the records, he was of the opinion that Faith suffered a "birth-related neurological injury." With regard to brain injury, Dr. Charash was of the opinion that Faith's injury had two components, lack of oxygen and trauma (mechanical injury). As for oxygen deprivation being a likely course of brain injury, Dr. Charash noted Faith's one-minute Apgar score, which reflected severe depression; the need for resuscitation; an increased number of nucleated red cells; a low bicarb; a likely false pH, since Faith was given a bolus of sodium bicarb on delivery without adverse effect; and evidence of kidney malfunction, with transient abnormalities in her liver enzymes. As for trauma, Dr. Charash noted the subdural hemorrhage (cephalohematoma), observed on CT scan at 3 days of age, a likely result of trauma during delivery, as well as the severe bruising of the head documented following delivery. Finally, as further evidence of likely brain injury, Dr. Charash noted that on delivery, Faith's head, at 33 1/4 centimeters, was normal, but within a matter of months failed to grow as one would expect, and that she is now microcephalic. Consequently, Dr. Charash concluded that Faith likely suffered brain injury during labor, delivery, and resuscitation caused by oxygen deprivation and mechanical injury. (Intervenor's Exhibit 1, page 18.) As for the neurological consequences associated with such injury, Dr. Charash offered the following observations: EXAMINATION BY MR. TOWNSEND: * * * Q. Did . . . the lack of oxygen or the trauma affect her mentally in any way? A. Yes. I think it has left her with certain physical stigmata and certain intellectual stigmata. She has certain physical injuries based upon her birth difficulties and she's been left with behavioral and cognitive and learning difficulties; yes. Q. And that's clearly set forth in the records that you've reviewed, the cognitive and the physical problems? A. Yes. Let me deal with them one at a time, if I may. Q. All right, sir. A. The Orange County Public Schools have evaluated her and they find her functioning at percentiles which are far below age expectations. For example, there's a report of the Highland Elementary School in kindergarten described on 8/21/03, it's one of many reports, but this brings us up to five years and seven months . . . . At this point in time she's five years and seven months old. Her ability for functional independence is that of a three-year old which puts her in the lower one tenth of one percent of the population, 0.1, which means that 99 people out of a hundred outscore her in that area. They give her a rating for motor skills. They think her motor skills are three years and one month at an age of five years and seven months, which, again, puts her in the profoundly retarded area in terms of her motor skills, precise movements, coordination, fitness, etc. They have another score of social interaction and communication. Again, she's equivalent in one area to a three year one month old, another area she can pass tests at two years and two months, she has great difficulty with tasks that approach four years and eight months. And so it goes. They basically conclude that in every area she averages out three years and no months. She's five years and seven months. This gives her a quotient of an aggregate of all other adaptive performance in the range of retardation . . . . There is a psychoeducational evaluation done at the Seminole County Public Schools. This is carried out when she's five years and seven months. . . . The conclusion here . . . is . . . that the child is performing in areas that range from the very low category in the WJ-111 cognitive battery. She's considered to be significantly deficient. She's in the second percentile in the Bracken, B-R-A-C-K- E-N, basic concept scale. She's in the fourth percentile in some other test. On the Stanford Binet, in her verbal ability she does better, she's at the 12th percentile, and that's not retarded. . . . Now, her physical problems are of great significance here and, frankly, I think they relate to what I've mentioned before, her problems with balance, equilibrium, coordination, some of which may be tangentially a consequence of her visual impairments, but it is my opinion within a reasonable degree of medical certainty that her major physical problem aside from the structural change in her brain which makes it abnormally very, very small is her blindness or her severe visual impairments. As noted, Dr. Charash was of the opinion that Faith's principal physical injury was her visual impairment, which rendered her substantially physically impaired, and that Faith's visual impairment resulted from bilateral retinal detachment that was caused by mechanical injury during delivery.7 (Intervenor's Exhibit 1, pages 21-31.) Consequently, if credited, Dr. Charash's testimony would support the conclusion that Faith suffered bilateral retinal detachment caused by mechanical injury that rendered her substantially physically impaired, and that such impairment did not result from a brain injury. Notably, other physicians who have examined Faith, as well as the Seminole County School System, have concluded that Faith's gross and fine motor skills, except to the extent they may be diminished because of her visual impairment, are age appropriate. Consequently, given the record, there is no competent proof to support a conclusion that Faith is permanently and substantially physically impaired, because of a brain injury. Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Faith's delivery was traumatic and there is evidence to suggest that she may have suffered oxygen deprivation during labor, delivery and resuscitation, as well as mechanical injury, as evidenced by the cephalhematoma, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation or mechanical injury she may have suffered resulted in significant brain injury, or that she is permanently and substantially physically impaired. In so concluding, it is noted that Faith's hospital course post-delivery was not consistent with Faith having suffered an acute brain injury; that the imaging studies do not reveal brain injury, (i.e., evidence of atrophy) and are therefore most consistent with cerebral malformation; that Faith's current deficits have a congenital basis, at least in part; that Dr. Duchowny, as opposed to Dr. Charash, examined Faith, and based on his training and experience is most qualified to address the neurologic issues in this case; and that Dr. Duchowny, as opposed to Dr. Charash, was most candid, and his opinions were most consistent with the other proof of record. Consequently, it is resolved that the more credible proof demonstrates that Faith's impairment, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation, and that, regardless of the cause, Faith is not permanently and substantially physically impaired.
The Issue At issue is whether Eliana Redwine, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts1 Petitioner, Aimee Redwine, is a parent and natural guardian of Eliana Redwine. Eliana was born a live infant on October 10, 2006, at Shands at AGH, a licensed Florida hospital located in Gainesville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Eliana's birth by George Buchanan, 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. Coverage under the Plan 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 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."2 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Eliana suffered a brain- damaging event, which rendered her permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports the conclusion that, more likely than not, such injury was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period" in the hospital, as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words as written, the oxygen deprivation or mechanical injury to the brain must take place during labor or delivery, or immediately afterward."). Eliana's birth and immediate newborn course At or about 11:43 a.m., October 10, 2006, Mrs. Redwine, with an estimated delivery date of October 17, 2006, and the fetus at 39 3/7 weeks' gestation by ultrasound (US), was admitted to Shands at AGH for induction of labor due to preeclampsia. There, fetal monitoring revealed an overall reassuring fetal heart rate in the 140 beat per minute range, and vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement at 50 percent, and the fetus high. Mrs. Redwine was induced with Petocin, starting at 2:36 p.m.; progressed to complete dilation by 9:58 p.m.; and at 10:05 p.m., Eliana was born by spontaneous vaginal delivery. In the interim, at 6:16 p.m., Mrs. Redwine's membranes were artificially ruptured, with clear fluid noted, and fetal monitoring remained reassuring. At delivery, a single nuchal cord was noted, and relieved. According to the medical records, Eliana cried spontaneously following delivery; was bulb-suctioned, dried, and stimulated; and was assigned Apgar scores of 8 and 8, at one and five minutes, respectively. However, Eliana subsequently showed evidence of respiratory distress (retractions and grunting)3 and, at or about 10:20 p.m., a Neonatal Intensive Care Nurse (NICU) nurse (Melissa Decker, R.N.) was called to observe her. (Joint Exhibit 1B, Tab 14, Bate Stamp p. 408). The NICU nurse arrived at labor and delivery when Eliana was 20 minutes of age (10:25 p.m.), and noted moderate subcostal retractions, with grunting; some central cyanosis; significant facial bruising; and oxygen being provided via blow- by. Eliana was suctioned by catheter, with a copious amount of thick mucous returned, and transported to the neonatal intensive care unit for continued care via transport isolette, with blow- by oxygen provided during transport. (Joint Exhibit 1B, Tab 14, Bate Stamp p. 408). Eliana was received in the neonatal intensive care unit at or about 10:35 p.m., and placed on a radient warmer (RW) bed. Oxygen saturation was noted as 92% with blow-by. Eliana was placed under an oxyhood, with oxygen started at 90%, and a decrease in cyanosis was noted. By 12:15 a.m., October 11, 2006, no further grunting or retractions were noted, oxygen saturation was noted as 100%, and Eliana was described as pink and well-perfused. Orders were received to begin weaning, and by 1:30 a.m., Eliana was weaned to room air, with oxygen saturation noted as 98%. Eliana experienced no further respiratory difficulties, and was discharged with her mother on October 13, 2006. Eliana's subsequent development On April 5, 2007, Eliana was seen by Myra Alfino, M.D., a pediatrician associated with the University of Florida, for developmental delay. Dr. Alfino noted a number of abnormalities, including microcephaly (37.8 cm), eyes not tracking, and hypotonia, and ordered a brain MRI. The MRI, done April 11, 2007, was reported, as follows: Findings: This study is abnormal. There is advanced global atrophy. There is diffuse leukomalacia of the white matter of the cerebrum and of the dentate nuclei of the cerebellum and Wallerian degeneration in long tracks. Patient motion precludes evaluation of the optic nerve size. There is compensatory extra-axial fluid. There is a focal intradural blood collection of acute to subacute nature along the posterior falx. The corpus callosum is small. The paranasal sinuses and oto-mastiod air cells are normally developed and aerated without evidence of acute or chronic mucoperiosteal thickening or intrasinus fluid. IMPRESSION: Post anoxic brain damage producing microcephaly and extensive leukomalacia. Small subacute intradural hemorrhage as above. Following the MRI, Eliana was seen by Dr. Omid Rabbani, a resident doing a 3-month rotation in pediatric neurology, and Dr. Edgar Andrade, a physician board-certified in neurology with special competence in child neurology, and Assistant Professor in the College of Medicine, Department of Pediatrics, Division of Pediatric Neurology, who was Dr. Rabbani's attending (supervising) physician. Dr. Andrade included the following attending attestation to Dr. Rabbani's report: I have spoke with the caregivers and have examined the patient and have formulated a join[t] history, physical assessment and plan of care, as Dr. Rabbani has documented it. The patient reportedly suffered anoxic brain injury at the time of birth.[4] Neurological exam was significant for poor head control, diffuse hypotonia, hyperreflexia and a brisk Moro response. Brain MRI supports the notion of post anoxic brain damage. I have educated the family about potential complications of such findings included but not limited to cerebral palsy and developmental delay. I have recommended enrolling the patient in a comprehensive multidisciplinary program where she can receive physical, occupational and speech therapy. Follow up in the clinic in 3-4 months. Notably, neither Dr. Rabbani nor Dr. Andrade expressed an opinion regarding the cause or timing of Eliana's brain injury. (Petitioner's Exhibit 1; Respondent's Exhibit 3). The likely cause and timing of Eliana's brain injury To address the likely etiology of Eliana's brain injury, NICA offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a pediatric neurologist. Dr. Willis reviewed the medical records associated with Eliana's birth and newborn course and concluded that, more likely than not, Eliana did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period.5 In so concluding, Dr. Willis observed that fetal monitoring during labor was reassuring; the baby's Apgar scores were good (8 at one and five minutes); the baby did not require any significant resuscitation at birth; and there was no clinical evidence of an acute brain injury during Eliana's immediate newborn course. (Respondent's Exhibit 4). Dr. Fernandez evaluated Eliana on October 1, 2008. Based on that evaluation, as well as his review of the medical records, Dr. Fernandez was of the opinion that Eliana was permanently and substantially mentally and physically impaired, and that the cause of such neurologic impairment was the brain damaging event revealed by the MRI scan of April 11, 2007. As for the etiology of the brain injury, Dr. Fernandez was of the opinion that, while its cause could not be identified,6 the injury most likely occurred in utero, weeks or months before the onset of labor, and not during labor, delivery, or resuscitation in the immediate postdelivery period. (Respondent's Exhibit 2). In expressing, his opinion, Dr. Fernandez noted that, at birth, Eliana presented with a congenital microcephaly, a head circumference of 30.5 centimeters (cm) that was way below the third percentile for age matched controls; that such condition is consistent with long-standing growth retardation of the brain during the course of pregnancy; and that when he examined Dr. Eliana, at almost two years of age, her head circumference, at 39.5 cm, was still well below the third percentile. Moreover, Dr. Fernandez, like Dr. Willis, was of the opinion that there was no clinical evidence to support the conclusions that, more likely than not, Eliana suffered a significant brain injury during labor, delivery, or immediately thereafter. (Respondent's Exhibit 2). Notably, when a medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, Petitioner offered no expert testimony to support a finding regarding the cause or timing of Eliana's brain injury, and the opinions of Doctors Willis and Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that Eliana's brain injury represents a congenital abnormality, that predated the onset of labor, as opposed to a "birth-related neurological injury." See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
Findings Of Fact Terrance Drake, Jr., was born on April 27, 2012, at Bayfront Medical Center in St. Petersburg, Florida. Respondent retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Terrance. Dr. Sigurdardottir reviewed Terrance’s medical records, and performed an independent medical examination on him on October 14, 2015. In a neurology evaluation based upon this examination and an extensive medical records review, Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a 3-year-5-month-old boy with a near miraculous recovery after a near fatal bradycardia due to likely placental abruption during delivery. He is at this time physically healthy but has a mild microcephaly. He has no obvious motor impairment and likely but not established mild language delay. The patient is doing well compared to his extremely dire situation at birth. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: There is evidence of near terminal hypoxia at birth resulting in infant being declared deceased, but self resuscitation occurred followed by a period of critical illness. Presumed hypoxic neurologic injury is plausible and timing of injury is in immediate perinatal period. No evidence suggests his injury having occurred apart from the immediate perinatal period. Results as to question 3: We expect a full life expectancy and an excellent prognosis, although mild mental delays relating to attention span, language, and/or behavior cannot be ruled out at this time. In light of the above-mentioned details, and with lack of substantial physical and motor impairment, I do not recommend Terrance being included into the Neurologic Injury Compensation Association (NICA) Program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion was affirmed in her affidavit dated March 29, 2016. In order for a birth-related injury to be compensable under the NICA 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 Terrance does not have a substantial physical or mental impairment 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 Terrance does not have a substantial physical or mental impairment.
The Issue Whether Jasmine Mack has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact 1. Jasmine Mack (Jasmine) is the daughter of Joel Mack and Lynette Anderson Mack. She was born a live infant, on July 27, 1990, at University Medical Center, Jacksonville, Florida, and her birth weight was in excess of 2500 grams. 2. The physician delivering obstetrical services during the birth of Jasmine was Patrick Conner, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 3. Jasmine Mack was delivered vaginally, with a forceps assist. The delivery was without complications and Jasmine presented with Apgar scores of 8 at one minute and 9 at five minutes. No evidence of fetal distress or of an hypoxic ischemic event occurring during labor or delivery is apparent from the labor and delivery records. 4. After birth, Jasmine was transported to the hospital nursery where she remained until she was discharged in the custody of her mother one day after her birth. 5. For at least a six month period after birth, Jasmine Mack experienced no medical problems; however, at approximately 3 six months of age, Jasmine’s mother observed Jasmine’s fingers "trembling" on various occasions and noted that Jasmine appeared to be experiencing some night-time trauma. Jasmine was seen at various hospital emergency rooms and was discharged on each occasion as an otherwise healthy infant without any discernible medical problems. 6. At approximately eighteen months of age, Jasmine was referred to the Nemours Children’s Clinic for evaluation. On March 12, 1992, Jasmine was administered an electroencephalogram (EEG) which was interpreted by William R. Turk, M.D. The EEG was administered for the purpose of determining whether Jasmine was undergoing "night terrors" versus "nocturnal seizures." The EEG demonstrated recurrent left central-midtemporal spike discharges which suggested Rolandic discharges. 7. On March 19, 1992, Jasmine was evaluated at the Nemours Children’s Clinic by William E. Zinser, M.D., for the purpose of distinguishing between "night terrors" and possible seizures. Upon examination, Dr. Zinser observed that Jasmine’s "mental status is normal and appropriate for her age. She interacted well with the examiner, was playful and smiling... General exam is unremarkable." Dr. Zinser concluded that the "daytime episodes" described by Lynette Mack were probably "partial complex seizures" and the night-time episodes were probably “night terrors." Tegretol was prescribed to control the seizures. 8. Jasmine was next seen at the Nemours Children’s Clinic by Dr. Zinser for a follow-up visit on April 21, 1992. Since her last visit, Jasmine was reported to have had one seizure where she bit her lip and was staggering, as well as crying out as in fear. At the time she was receiving a dosage of only 50 mg. of Tegretol. Upon examination, Dr. Zinser noted that Jasmine, "is alert and active. She interacts well with the examiner and with other family members in the room. . . Motor tone and strength are normal in upper and lower extremities as well as the trunk. Gait testing is normal and appropriate for her age." Dr. Zinser concluded that Jasmine suffered “partial complex seizures with a recent break through seizure [which] could have been due to the fact that her Tegretol dosage is somewhat low." Jasmine’s Tegretol dosage was therefore increased to control her seizures. 9. During the April 21, 1992 visit, Dr. Zinser also discussed with Jasmine’s parents an MRI which had been done after the last visit and in which there appeared several areas of bright signal in the periventricular white matter of Jasmine’s brain. Dr. Zinser concluded that, "The significance of this is not clear, but it appears to be related to some perinatal ischemia." 10. Dr. Zinser next saw Jasmine on June 16, 1992, at the Nemours Children's Clinic. In his June 16, 1992 report, Dr. Zinser noted that: An M.R.I. from a prior visit shows two areas of bright signal in the periventricular white matter of unclear significance. She is coming today for follow-up with her father and mother. The mother expresses some concern over the MRI findings and is requesting some additional explanation. She was informed that these type of lesions may occur occasionally from periventricular ischemia such as what occurs in pre-mature infants. However, we are not sure this is the only reason in Jasmine’s case. She has not presented any further seizures and has tolerated her medication quite well... The night-time waking episodes appear to be related first of all to the fact that she sleeps in her parents bedroom in bed, secondly because she always gets some attention when she wakes up. ll. In the June 16, 1992 examination, Dr. Zinser further observed that Jasmine: Has general normal developmental screening for her age. She is using sentences of 2 and 3 words and she appears to have an extensive vocabulary. Her speech is at least 75% intelligible . . . Motor tone and strength are normal in the upper and lower extremities. Gait testing is normal and appropriate for her age... Her general examination is unremarkable. There are no significant changes from her previous visits. 12. Jasmine was next seen by Dr. Zinser on August 3, 1992, at the Nemours Children’s Clinic. At that time, Dr. Zinser observed that: She has not presented any seizures since her last visit from a month and a half ago. She has done well at home and her development continues to progress in a normal fashion + Motor tone and strength are normal in the upper and lower extremities. There is no ataxia and there is no dysmetria ..., Sensory exam is grossly normal. General examination is unremarkable. 13. Jasmine next visited the “Neurology Clinic" at the Nemours Children’s Clinic on October 14, 1992. On this occasion, she was seen by Daniel L. Bluestone, M.D. Dr. Bluestone noted that Dr. William Zinser had been previously following Jasmine’s “complex partial epilepsy of the left temporal origin," and that, "the mother informs me that the last seizure reportedly occurred four months ago, and that the patient has been seizure-free since that time. She is experiencing no side effects of the Tegretol, and continues to achieve all developmental milestones at appropriate times." 14. Upon examination, Dr. Bluestone observed that Jasmine’s "[mjotor examination revels (sic) normal muscle bulk, tone, and power. The patient's gait is age appropriate, but she will dystonically posture her left arm ina flex position when she walks or runs. She will spontaneously use both hands, though a clear right-hand preference is present... . Testing of primary sensory modalities reveals normal responses throughout.” 15. Dr. Bluestone concluded, following his examination, that "Presumably, she suffered some antenatal or perinatal hypoxic ischemic event, giving rise both to the motor and MRI findings, and the subsequent partial epilepsy. Her motor findings are minimal at this time, and require no intervention. Her seizures are currently well-controlled on Tegretol monotherapy . . . Should the patient continue to do well, then the next follow-up appointment will be made in six months time." 16. The final neurological examination given to Jasmine at the Nemours Children’s Clinic occurred on May 3, 1993. On this occasion she was again examined by Dr. Bluestone who noted that "The patient has remained seizure free since her last clinic visit. At the present time, she is experiencing no side effects with Tegretol therapy. She continues to achieve all developmental milestones at appropriate times." Dr. Bluestone did, however, note a “subtle left upper motor neuron facial weakness" but concluded that the "motor examination reveals normal muscle bulk, tone, and power, although she will dystonically posture the left arm in a flexed position when she runs." Dr. Bluestone concluded his examination by noting that: . again, given the absence of a clear neonatal syndrome of hypoxic ischemic encephalopathy, I must conclude that this patient suffered an antinatal (sic) hypoxic ischemic event, giving rise to both her left hemiparesis and her subsequent partial epilepsy. Her seizures are currently well controlled on Tegretol monotherapy ... ." 17. On July 20, 1993, Jasmine was evaluated by Michael s. Duchowny, M.D., at the request of NICA. opr. Duchowny is Board- certified in pediatrics and pediatric neurology and is a staff neurologist in the Department of Neurology at Miami Children’s Hospital. 18. Contrary to the reports as to a complete cessation of seizure activity as set forth in the neurological evaluations done at Nemours Children’s Clinic, Lynette Mack related to Dr. Duchowny that Jasmine was experiencing a seizure approximately once a week. Furthermore, Mrs. Mack related to Dr. Duchowny that Jasmine "Falls often and her body gyrates when she walks." Given the dichotomy between such revelations and the observations recorded at the Nemours Children’s Clinic that the seizures were under long-term control with Tegretol, Mrs. Mack’s statements to Dr. Duchowny are of dubious credibility. 19. Dr. Duchowny performed a complete neurological examination of Jasmine and concluded that Jasmine was "an alert, well-developed and well proportioned, cooperative, three-year old black female." Dr. Duchowny further noted that Jasmine had an appropriate attention span for age and interacted well during the neurological evaluation. Dr. Duchowny noted that Jasmine could identify pictures of animals as well as body parts and that her speech was fluent and well articulated. Furthermore, Dr. Duchowny noted that Jasmine’s motor examination was normal with the exception of a mild asymmetry of posture with the right arm being subtly postured and straightened compared to the left, but that she could walk and run quite well for her age. Dr. Duchowny concluded: In SUMMARY, Jasmine’s neurologic examination reveals only a mild posture asymmetry of the upper extremity but no other significant lateralizing findings. I did not find her attention span or cognitive status to be diminished for age and she seems to be developing quite well. In my opinion, Jasmine’s seizure disorder is not a birth- related neurologic injury nor was it acquired in the course of labor delivery or resuscitation in the immediate post-delivery period. I believe that her seizure disorder is substantial. She is likely in fact to be experiencing nocturnal seizures as well. However, she is not suffering from a physical impairment. Her care has been quite appropriate and I would agree with her physician’s decision to continue treatment with carbamazepine although the issue of nocturnal seizures versus night terrors needs to be sorted out. 20. Based on the proof of record, it must be concluded that petitioners have failed to demonstrate that Jasmine suffered any substantial mental or physical impairment, or that she sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury that was related to any event that occurred during labor, delivery or resuscitation in the immediate post- delivery period. Rather, the record compels the conclusion that Jasmine's disorder was related to some antenatal (prenatal) event of unknown origin.
Conclusions For Petitioner: J. Richard Moore, Jr., Esquire 500 North Ocean Street Jacksonville, Florida 32202 For Respondent: W. Douglas Moody, Jr., Esquire Taylor, Brion, Buker & Green Suite 250 225 South Adams Street Tallahassee, Florida 32302
The Issue The issue in this case is whether Victoria Ann Longo has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Lisa Longo and Christopher Longo are the parents and natural guardians of Victoria Ann Longo. Victoria was born a live infant at Naples Community Hospital in Naples, Florida, on December 20, 2006. Naples Community Hospital was a hospital licensed in Florida on December 20, 2006. Thomas A. Beckett, M.D., was a participating physician in the Plan in 2006 and provided obstetrical services at the birth of Victoria. Obstetrical services were provided by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. Victoria weighed in excess of 2,500 grams at birth. NICA does not dispute that Victoria sustained an injury to the brain caused by oxygen deprivation during resuscitation in the immediate post-delivery period. Donald C. Willis, M.D., NICA's expert, opined: [T]his baby had meconium aspiration syndrome with severe respiratory depression and oxygen deprivation. The baby suffered an intracranial hemorrhage while on ECMO. There was no apparent obstetrical even [sic] that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery. This is supported by the absence of fetal distress during labor and a normal umbilical cord blood gas (pH7.35). However, respiratory depression was present at birth and progressively worsened with oxygen deprivation starting shortly after delivery. ECMO was required due to the severity of respiratory depression and was complicated by an intracranial hemorrhage documented on DOL 11. Subsequent MRI is consistent with brain damage. I am not able to comment about the severity of the brain damage. Victoria has an intractable seizure disorder that stems from the brain damage that she suffered during resuscitation in the immediate post-delivery period. She has epilepsy which cannot be controlled by medication. In April 2011, Victoria underwent surgery in an attempt to stop the seizures. A right frontal lobectomy was performed resulting in the resection/removal of a portion of Victoria's brain. The surgery was not successful, and Victoria continues to have seizures. It is now believed that Victoria's seizures are coming from her left occipital lobe. Further surgery could damage Victoria's visual fields and is not recommended by her physicians at this time, given the risks and benefits involved. Victoria's seizures last on an average of ten minutes, which is longer than most children with epilepsy experience. Prior to her surgery in April 2011, she had experienced a seizure lasting two hours. It takes her many hours to a couple of days to recover from a seizure, depending on the length of the seizure. However, she does return to baseline, meaning that she returns to her normal self. There may be some short-term memory loss. For example, she may have a seizure, and the next day not remember what she learned in school the day before. On December 2011, Victoria experienced a seizure while at school. The seizure seemed typical for Victoria, involving her left side and vomiting. Four minutes into the seizure, Victoria's teacher gave her Diastat, rectally. After the administration of the medication, Victoria had a bowel movement, and the teacher administered another dose of Diastat rectally. Victoria subsequently fell asleep. She was transported to the hospital. By the time she was examined in the emergency room, Victoria was awake, but appeared tired. Her parents indicated to the emergency room staff, that this recovery was typical for Victoria. She was discharged from the hospital. According to the records of Kimberly Nicholson, M.D., who treated Victoria in the emergency room, the December 2011 seizure was the first seizure that Victoria had had in three weeks. As of the date of the final hearing, February 28, 2012, this seizure was the most recent seizure that required a trip to the emergency room. Victoria has attended school since she was three years old. She currently attends a pre-kindergarten program for special needs children on a full-time basis. She rides the bus to school. School personnel are aware of Victoria's seizures and have medications which they can administer in case of a seizure. In the school year 2010-2011, Victoria missed 75 days of school due to medical problems. The majority of these days would have been related to the surgery performed in April 2011 and an ensuing infection. No testimony was provided on the number of days that were missed during the current school year. According to Ms. Longo, the seizure that occurred in December 2011, was on a Friday and Victoria was back in school the following Monday. Victoria is an active child; she can run, walk, jump, and play. Her coordination and motor skills are not as good as her mother would like, but Victoria has been attending physical therapy and continues to progress. Victoria likes to go to the park and swing. She likes to cook and helps her mother in the kitchen. She likes to go into the swimming pool and can dog paddle. Her mother describes her as smart and loving. Dr. Michael Duchowny, a board-certified pediatric neurologist, is Victoria's treating neurologist. He first began seeing Victoria in November 2010. Dr. Duchowny has been the chief of the Comprehensive Epilepsy Center at Miami Children's Hospital for 30 years. Dr. Duchowny has often served as an expert in pediatric neurology in evaluating children to determine compensability in terms of the Plan. He has evaluated approximately 200 to 300 children during the last 20 years as an expert for NICA. He has significant experience and qualifications in evaluating children with medical conditions across a wide spectrum. In the instant case, he was not retained by NICA to evaluate Victoria and render an opinion. Dr. Duchowny opined that Victoria had not sustained either a substantial and permanent mental impairment or a substantial and permanent physical impairment. Dr. Duchowny believes that the issue of whether Victoria met the criteria for NICA benefits to be a clear case and not in a "gray zone." In his deposition, Dr. Duchowny stated the basis for his opinion that Victoria did not qualify for NICA benefits. To my knowledge, the children who qualify for the NICA statute have to meet both, substantial and mental and motor impairment, and to be substantial in the motor domain, generally speaking, the children are not ambulatory; and to be eligible within the mental domain, most of the children, generally speaking, are mentally retarded, and that would be the minimum criteria. From there the children are even further, could be even further impaired. So, for example, it is one thing to take a child who is not ambulatory, for example, who are bedfast, who can't roll over, who really have overwhelming substantial motor impairment. Similarly, in a cognitive domain, there are degrees of mental retardation, beginning with mild mental retardation, progressing all the way to really profound cognitive deficits. As I said, I think Tori [Victoria] has impairments, but I don't thinks that she fits within those criteria. * * * [M]any of the children, for example, are quadriplegic, microcephalic, they have difficult spasticity, they might not be able to roll over or sit up, they have indwelling gastrostomy tubes, they might have severe orthopedic problems; this is the typical profile of the child who is admitted to the NICA program, in my experience. Dr. Duchowny described Victoria as a very engaging girl, friendly, outgoing, and fun. She has receptive and communicative skills. She is able to understand and respond appropriately and interacts with others. It is Dr. Duchowny's opinion that her social development is "exceptionally good," but delayed for her age. He believes that Victoria will be able to attend school and will continue to learn and develop. In the future, as an epileptic, Victoria will not be able to legally drive in Florida. Dr. Duchowny opines that she will be able to work, but that her limitations would preclude her from earning a high income. Victoria has no spasticity, full range of movement, and no atrophy. She has normal muscle bulk, normal strength and normal tone. Her fine motor coordination is compromised. She is clumsy and poorly coordinated for her age. Taking into account all the foregoing, including Victoria's permanent seizure condition, it is Dr. Duchowny's opinion that Victoria's seizure condition and it effects are not sufficient to qualify her as reaching a threshold of permanent and substantial mental and physical impairment. His opinions are credible, well-founded, and supported by his evaluation of Victoria's medical condition. Ian Miller, M.D., is a pediatric neurologist with an expertise in epileptology. He was board-certified in 2008 in neurology with special expertise in child neurology. He is one of the team members who have treated Victoria at Miami Children's Hospital. Prior to the instant case, Dr. Miller has never testified in a case in which benefits are being sought under the Plan. He has never been retained by NICA to give an expert opinion, and he has never read any opinions or cases involving children that have been qualified for benefits under the Plan. It is Dr. Miller's opinion that Victoria has a permanent seizure condition but that a seizure condition in and of itself does not render a child permanently and substantially mentally and physically impaired. A seizure is a temporary event, and a person will return to baseline following the seizure and after recovery from any medications used to control the seizure. The seizure should not cause any permanent loss as to what the person has learned, but there may be a temporary loss as to what was learned immediately prior to the seizure. Dr. Miller's testimony does not support a conclusion that Victoria has a substantial and permanent physical impairment. She is ambulatory and does not exhibit any spasticity. While she may not be able to walk while she is having a seizure, she does recover and can walk after the seizure. It is Dr. Miller's opinion that Victoria will be able to attend school, and could probably be in a mainstream class. Dr. Miller is concerned that the seizure condition will create a significant barrier to Victoria's learning and social development. He feels that Victoria has the ability to learn, but that she may have absences from school as a result of the seizures that would slow her learning. He also feels that her social appropriateness in a classroom will be a barrier to learning. He stated: Teachers are not accommodating to kids that stand out in school. They have way too much on their plates already. They're underfunded and they have too few resources, and trouble making kids, which is what this manifests as later on, to get sent to the principal's office and expelled. It is assumed that this scenario is based on Victoria being placed in a mainstream class, rather than a special education class. Dr. Miller's testimony does not support a finding that Victoria has a permanent and substantial mental and physical impairment. In March 2011, Victoria was evaluated by Brandon Korman, Psy.D, at Miami Children's Hospital prior to Victoria's right frontal lobectomy. His examination revealed the following: Victoria was functioning in the low average range, with much stronger verbal than nonverbal skills, better receptive than expressive language, and poor speech articulation. She had weak problem-solving and fine motor skills, with an inefficient writing grip. She demonstrated poor attention and significant off-task behavior during testing. Victoria was at that time about 9 months below grade level academically. Victoria's actions are often socially inappropriate. When she does not get her way, she will throw a temper tantrum. Her mother describes her as a loving child who likes attention and wants to give attention to others with hugs and kisses. She is impulsive and has a short attention span. Dr. Korman recommended intense behavioral therapy as well as speech and occupational therapy. Victoria's pediatrician is Charles Todd Vedder, M.D. He does not currently treat any children who have qualified for NICA benefits. He has never been asked to evaluate a child to determine whether the child qualifies for benefits under the Plan. It is Dr. Vedder's opinion that the recovery time after a seizure is a transient condition, and the patient will return to baseline after the recovery. Dr. Vedder believes that Victoria has developmental delays, but that she will continue to progress. She will be able to toilet herself, brush her teeth, groom her hair, and things of that nature. However, it is his opinion that she will never catch up with her peers. Dr. Vedder's testimony does not support a conclusion that Victoria has a permanent and substantial mental and physical impairment as contemplated by the Plan. Patricia Dean, is a nurse practitioner, and the clinical coordinator of the Comprehensive Epilepsy Program at Miami Children's Hospital. She has worked at Miami Children's Hospital in dealing with children with epilepsy for 30 years. Ms. Dean works under the direction of the neurologists at Miami Children's Hospital, which includes Dr. Miller and Dr. Duchowny. Ms. Dean was part of the team at Miami Children's Hospital that treated Victoria. She believes that Victoria has sustained a significant amount of brain damage and cognitive impairment. She does not feel that Victoria will ever be able to live alone when she is age appropriate because of her seizure condition. Ms. Dean opined that Victoria will never drive a car, hold a job, or live independently. She thinks that Victoria will continue to improve and progress in school but it will be at a slower pace than her peers. Ms. Dean agrees with Dr. Korman that Victoria's intelligence quotient is in the low- average range. Ms. Dean is in agreement with Dr. Vedder that a seizure is a transient event and that a person with epilepsy typically returns to baseline after recovery from a seizure. Persons who experience seizures will typically have short-term memory loss, meaning that they will forget what they learned the day before the seizure. Ms. Dean has the opinion that Victoria meets the qualifications for benefits from the Plan. Other than the instant case, Ms. Dean has never been asked to testify in a proceeding to determine compensability under the Plan. Based on her testimony, it is concluded that Ms. Dean has the opinion that because Victoria will never be a "normal" child that she should qualify for benefits pursuant to the Plan. While it is true that Victoria will never be "normal," her impairments do not rise to the level of permanent and substantial mental and physical impairments contemplated as compensable under the Plan. Dr. Raymond Joseph Fernandez, M.D., evaluated Victoria at the request of NICA. He is board-certified in pediatrics and neurology together with child neurology and has been practicing pediatric neurology for 35 years. Dr. Fernandez has evaluated approximately 15 to 20 children on behalf of NICA to determine whether they qualify for benefits under the Plan. He is familiar with the applicable guidelines and, in fact, has opined in the majority of the cases that the children do qualify under the criteria of the Plan. Dr. Fernandez reviewed Victoria's medical records and, on June 1, 2011, evaluated Victoria in person. In this particular case, he does not feel that Victoria meets the applicable qualifications. In fact, when questioned as to whether this case is a close call, he opined that it was not a close call and that Victoria clearly does not qualify under the applicable criteria. She does not have a substantial and permanent motor impairment and does not have a substantial and permanent mental impairment. He opined that the seizure condition is an intermittent impairment and not a permanent impairment. When Dr. Fernandez examined Victoria, she displayed a high activity level, and her attention span was short. He asked her questions such as her name, age, and birthday. Victoria responded appropriately to the questions. She told Dr. Fernandez her brother's name and counted her fingers up to three correctly. Victoria was able to speak single words and short phrases. She identified colors, drew circles on request, and copied an "X" when demonstrated. Dr. Fernandez observed that Victoria could walk well independently, run, jump off the ground on two feet, and hop on either foot alone. She was able to stack one-inch cubes. It is Dr. Fernandez's opinion that Victoria has the capacity to learn and to develop socially. Learning will not be easy for Victoria, but she has the capability to learn. He believes that she will be eventually able to engage in gainful employment. He feels that Victoria will be able to attend school and could be in a mainstream class with some accommodations for her short attention span, such as a tutor. Dr. Fernandez's opinion that Victoria does not have a permanent and substantial mental and physical impairment is credited.
The Issue The issue in this case is whether Javier Saladrigas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Threshold Facts Notice has been waived and is not a contested issue herein. (Stipulated). Elisa Saladrigas is the mother and natural guardian of Javier Saladrigas. (Stipulated). She holds a doctorate in psychology, and sometimes will be referred-to herein as "Dr. Saladrigas." Javier was born a live infant on December 14, 2006. Javier weighed at least 2,500 grams at birth and was the product of a single gestation. (Stipulated). Obstetrical services were delivered to Elisa Saladrigas in connection with the delivery of Javier Saladrigas by NICA- participating physicians in Baptist Hospital of Miami, Inc. (Baptist Hospital), which is a licensed hospital in Miami, Florida. (Stipulated). The Timing of Javier's Injury On the date of Javier's birth, Elisa Saladrigas was a 37-year-old G1 with an IVF pregnancy and history of hypothyroidism. On December 14, 2006, at 3:16 p.m., Javier was delivered, full term at 38 weeks and four days gestation, with thick meconium-stained amniotic fluid, following a 15-1/2 hour labor. During labor, Javier's fetal monitor strips showed variable decelerations that progressed to severe decelerations with loss of heart rate variability. Upon delivery, the umbilical cord was looped around Javier's neck. He was floppy, tachypnic (evidencing an increased rate of respiration), and grunting, with a weak respiratory effort and in respiratory distress. He required "vigorous resuscitation" in the delivery room in the form of bag and mask ventilation, oxygen support, oral suctioning, gastric suctioning, tracheal suctioning, and vigorous tactile stimulation. Subsequent to such resuscitation in the delivery room, Javier's Apgars were six at one minute, seven at five minutes, and nine at ten minutes. These scores are within normal limits. At 3:57 p.m., still requiring oxygen support and exhibiting low oxygen saturations, with a working diagnosis of possible sepsis (later confirmed by testing as Group B streptococcus acquired from the mother during labor and/or delivery), hypoglycemia, and respiratory distress, Javier was transferred to Baptist Hospital's newborn nursery. It is significant that Javier's respiratory distress continued even after he achieved acceptable Apgar scores, because case law provides that the statutory period for compensability may encompass an additional "extended period of time when a baby is delivered in a life threatening condition" only if "there are ongoing and continuous efforts of resuscitation," and that "both the incident of oxygen deprivation and the brain injury resulting from the oxygen deprivation must occur in this time period."2/ Newborn nursery examination notes indicate that at 4:30 p.m., Javier's overall status was "critical," with an unstable respiratory rate and unstable blood pressure, and describe his condition as "pale and tachypnic in severe respiratory distress." Based upon the evidence as a whole, particularly by comparison of this entry to other notations made in the record at or about the same time, it is probable that these notes were dictated earlier than 4:30 p.m., and closer in time to Javier's physical admission to the newborn nursery and simply were not dictated or typed until 4:30 p.m. Due to Javier's on-going respiratory distress and other indicators, Neonatologist Paul Fassbach, M.D., transferred Javier from the newborn unit to Baptist Hospital's Neonatal Intensive Care Unit (NICU) for treatment of meconium aspiration syndrome (MAS). At 4:53 p.m., Javier was admitted to the NICU with worsening respiratory distress and poor oxygen saturations. He was given increased respiratory support, including positive pressure ventilation by NCPAP. Javier subsequently was diagnosed with septicemia by group B streptococci (Group B strep sepsis); respiratory distress; and severe MAS, confirmed by X- ray, showing diffuse pulmonary opacities throughout both lungs. MAS occurs when a baby inhales his own feces which have been expelled during labor and/or delivery. These feces are extremely corrosive to the baby's lungs.3/ Javier continued to desaturate, despite continuous resuscitative measures in the NICU, and at 8:52 p.m., he was intubated and placed on a ventilator. Umbilical arterial and venous catheters were surgically inserted to enable closer monitoring of his metabolic and respiratory condition. Javier was administered IV antibiotics for sepsis, glucose for hypoglycemia, nutritional support, dopamine, dobutamine, and epinephrine for low blood pressure, and surfactant medication to improve his lung function, but his condition continued to deteriorate. At 7:21 a.m., on December 15, 2006, Javier suffered the first of two cardiac and respiratory arrests. At 9:04 a.m., December 15, 2006, he arrested a second time, while still being assisted for the first arrest. All of the testifying physicians who had an opinion on the subject agree that, more likely than not, Javier's subsequently-diagnosed brain injury occurred at or about the time of these two "codes" or that the brain injury began to evolve at that point in time and worsened thereafter. Resuscitation at the point of the cardiac arrests took about 40 minutes. Umbilical artery cord blood gas is indicative of whether or not there has been oxygen deprivation at birth, but Javier's umbilical artery cord blood gas was never drawn. Rather, arterial blood gas drawn about four hours after birth, via a heel pinprick, showed a pH of 7.12, with a base excess of minus 12.8, which is acidotic and indicative of some degree of acidosis. When the baby coded approximately 18 hours after birth, the pH was only 6.78, with a base excess of minus 21, which is profoundly acidotic. Together, the blood gases may be read to indicate progressive oxygen deprivation preceding the cardiac arrests. Petitioner presented the testimony of Daniel Castellanos, M.D., a child and adult psychiatrist, who did not opine on timing and causality of Javier's brain injury, and of Nicholas Suite, M.D., a neurologist. Intervenor presented by deposition the testimony of Dr. William Rhine, a neonatologist. Respondent NICA presented the testimony by deposition of Dr. Charles Willis, a board-certified obstetrician, with special competence in maternal-fetal medicine, and of Dr. Michael Duchowny, a pediatric neurologist.4/ Neonatologist Rhine opined that hypoxia (a deficiency of oxygen reaching the tissues of the body, including the brain) resulted in the foregoing blood gas values, which were profoundly acidotic. Obstetrician Willis testified much the same. See infra. The greater weight of the credible medical evidence as a whole, but most notably the testimony of Dr. Rhine, the only neonatologist to testify, Dr. Willis, Dr. Michael Duchowny, a board-certified pediatric neurologist retained by NICA, who performed a "hands-on" neurological examination of Javier on July 15, 2009, and Dr. Nicholas Suite, a neurologist appearing for Petitioner, who examined Javier in September 2010, support a finding that simultaneously or concurrently with the two cardiac arrests in close succession, Javier suffered loss of oxygen to his brain, resulting in physical damage to his brain, which damage subsequently became visible on MRI. That is not to say, however, that some brain damage due to loss of oxygen did not occur during labor and delivery and/or during resuscitation in the delivery room, because the various medical authorities concede that it takes only about six minutes for such brain damage to occur, killing brain tissue. Most particularly, Dr. Duchowny's formal report to NICA read: . . . The records provide evidence of meconium aspiration syndrome and cardiac arrest. As they both occurred in the postnatal period, I believe they are the consequence of factors operating during labor and delivery. Dr. Willis could not quantify the degree of respiratory distress at birth, and opined, without further explanation, that although there may have been some oxygen deprivation to the baby at birth, it did not appear sufficient to meet the HIE standards for hypoxic brain injury. Dr. Willis could not determine from the cold medical records whether the baby had strep B pneumonia at birth, but he acknowledged that there was as good a chance that the baby acquired strep B and MAS during labor and birth as prior thereto; that the baby had respiratory distress "at birth"; and that upon delivery, the baby immediately required some type of oxygen support. He further opined that if Javier did have strep B, then that could result in an inflammatory response in the lungs. The baby had respiratory distress at birth, which Dr. Willis thought was most likely caused by MAS, both irritating the lining of the lungs, and causing them to thicken and create mechanical obstruction of oxygen exchange in the lungs. He acknowledged that the baby's respiratory status deteriorated after the Apgars were recorded. He described the baby's condition on leaving the delivery room as only "improving somewhat." Dr. Willis testified, in pertinent part, as follows: * * * [Dr. Willis] A: . . . the baby went to the, left the delivery room, improving somewhat, but once the baby got to the nursery, began having more respiratory distress, and then was transferred to the neonatal intensive care nursery . . . about five or six hours after the baby was born that they had to intubate the baby because of worsening respiratory distress. * * * [Mr. Wolk] Q: All right. And respiratory distress worsens in the immediate post delivery period even after the baby's received supplemental oxygen and needed to be bagged. Also correct? A: Correct. Q: The respiratory distress continues worsening and the baby then needs to be intubated at five hours after birth? A: Yes. Q: Okay. This continuum of respiratory distress then continues. And I'm tracking the language on the first page of your report, Doctor. A: Uh-huh. Q: So about 18 hours after birth the baby codes in the NICU? A: Correct. Q: All right. All right. At this point would you -- do you have an opinion as to whether the cause of the code was related to group B--more related to group B stress [sic] or meconium aspiration, or a combination of the two? A: You know, I don't know. I believe by that time you're probably getting in more to a neonatal expertise then [sic] a maternal fetal medicine. I mean, I feel comfortable with the immediate postdelivery period, but, you know, hours into the nursery, I would prefer the neonatologist comment about that.[5/] Q: All right. We've got this continuing of worsening respiratory distress, starting with birth and then continuing to the code about 18 hours afterwards in the NICU, correct? A: Yes.[6/] Q: All right. Basically the summary in your report, baby requires CPR for 40 minutes and develops an anoxic brain injury from the code, correct? That's my assumption, yes. Q. When you say that's your assumption, what do you base that assumption on? A: Well, you know, the baby had a -- an ultrasound of the head done on the 15th, the day after birth, which would be, you know, after the code, and at that time they showed a moderate amount of cerebral edema, and that's often what we see as the earliest ultrasound findings for hypoxic ischemic brain injury, so -- Q: So more likely than not the edema shown on the head ultrasound was the result of a hypoxic brain injury? A: Right. And since the baby coded and required, you know, 40 minutes of CPR, it would certainly make sense that if there's, you know, brain injury, that it probably occurred, most of it, during that time. (Jt. Ex. 18, Willis Depo. pages 19-22) * * * [Mr. Solomon] Q: Okay. Would you agree with me that the passage of meconium and the meconium aspiration was an event which occurred sometime prior to the delivery of Javier . . . ? * * * A: . . . -- yes, it could occur at that time, but also you can get aspiration of meconium after the baby's born, when the baby takes the first few breaths as well. Q: Okay so it either occurred just prior to delivery or in the immediate post delivery period, correct? A: Correct. (Jt. Ex. 18, Willis Depo. pages 27-28) * * * Q: Okay. Is this child hypoglycemic at birth? A: Yes. The baby did have hypoglycemia, had low platelet counts, had a lot of problems, actually. Q: And all of these conditions would have existed at or around the time of birth, correct? A: Yes. (Jt. Ex. 18, Willis Depo. page 29) * * * Q: I mean, did this child always require some type of respiratory support? A: As far as I'm aware, yes.[7/] (Jt. Ex. 18, Willis Depo. pages 30-31) After his two "heart attacks," see Finding of Fact 16, Javier was transferred to Miami Children's Hospital at 10:30 a.m., on December 15, 2006, in critical condition with unstable heart rate, respiratory rate, and blood pressure. Javier's admitting diagnoses at Miami Children's Hospital included MAS, pulmonary hypertension, septic shock, hypertension, thrombocytopenia, and the need for continuous ventilator support. Javier was placed on extracorporeal membrane oxygenation (ECMO) due to severe respiratory distress and sepsis. ECMO is the equivalent of a heart/lung bypass machine which breathes for the infant and oxygenates his blood. At this point, ECMO "stabilized" Javier, but that is because it breathed for him. A brain ultrasound at Miami Children's Hospital at 1:33 p.m., on December 15, 2006, revealed "moderate diffuse brain edema." An EEG also showed abnormality. A brain ultrasound performed on January 9, 2007, was abnormal and showed signs of periventricular leukomalacia (PVL) within the brain's left frontal white matter, indicative of dead brain tissue. On February 14, 2007, a brain ultrasound showed a focal area of echogenicity in the white matter of Javier's brain. A CT scan of Javier's brain on April 3, 2007, showed permanent areas of calcification in the white matter of the left frontal lobe and an area of increased density in the white matter adjacent to the frontal horn of the left lateral ventricle. Encephalopathy and leukomalacia (signs of permanent brain injury resulting from loss of oxygen) were diagnosed on April 4, 2007, by Dr. William F. Carroll, a neonatologist at Miami Children's Hospital. He noted that Javier was oxygen dependent and required oxygen via nasal cannula; was at risk for developmental delay and required long term follow-up with physical, occupational, and speech therapies as well as frequent follow-up with the Early Intervention Team and multiple healthcare providers. A CT scan on April 3, 2007, showed that the cerebral edema was largely resolved and that only a "tiny area of increased density in white matter of the right frontal lobe remained, and this tiny area might constitute an area of calcification." See Finding of Fact 36. Javier remained at Miami Children's Hospital through April 24, 2007, when he was discharged by Dr. Manuel Campos, a neonatologist. When discharged, Javier had a doctor's authorization for "medically necessary" skilled nursing for 24 hours per day for one month, then 12 hours per day for two weeks. Thereafter, he transitioned into family care. The discharge diagnosis was thrombocytopenia, MAS, and pulmonary hypertension. Javier also had failed his hearing screening. However, a later test showed his hearing to be intact. See Finding of Fact 36. An MRI was recommended for further evaluation but was not performed until four years later, when it showed physical brain damage to Javier's hippocampus. See Finding of Fact 43. Although Petitioner and Intervenor have argued that oxygen deprivation to Javier's brain persisted through ECMO and further into the postnatal period, no finding regarding that period is necessary, because the greater weight of the competent evidence supports a finding that the injury to Javier's brain occurred during resuscitation in the immediate postdelivery period in Baptist Hospital no later than when Javier "coded" due to the cardiac arrests, and that the brain injury from oxygen deprivation had occurred at least by that point in time. Javier's Evaluations and Diagnoses Israel Alfonso, M.D., Director of Neonatal Neurology at Miami Children's Hospital, followed Javier's progress for some time. His reports, stipulated in evidence, addressed Javier's situation on April 30, 2007, July 23, 2007, March 24, 2008, and March 23, 2009. Dr. Alfonso's last narrative report, rendered when Javier was 27 months of age, describes a CT brain scan on April 3, 2007, showing a "[t]iny area of increased density in the white matter of the left frontal lobe that may represent an area of calcification," see Finding of Fact 31; a March 20, 2007, BAEP study, suggesting "normal precochlear and cochlear functions as well as normal conduction through both peripheral and central auditory pathways up to the level of the midbrain bilaterally"; a March 27, 2007, sacral ultrasound, showing a normal spinal cord; a VEEG study on January 22, 2007, represented as "Normal, . . . events non-epileptic in nature," and a January 15, 2007, normal EEG. His report further stated, ASSESSMENT: Neurological examination: minimal gross and fine motor developmental delay and hypotonia. IMPRESSION: static encephalopathy temporally related perinatal problems by history manifested by poor head growth (following a trend), minimal hypotonicity and feeding problems (improving). No craniofacial disproportion. Translated from "doctor-speak," the foregoing means that the neurologist associated with Javier for the longest time in a clinical setting, as opposed to a setting for litigation, who also is the neurologist who has had the most "hands on" association to date with Javier, diagnosed him at 27 months, as having minimal gross and fine motor developmental delay; permanent but non-progressing and unchanging encephalopathy; minimal loss of muscle tone; poor head growth; and feeding problems. Dr. Duchowny, NICA's pediatric neurologist, performed an independent medical examination of Javier on July 15, 2009, when Javier was about 31 months old. Deposed on April 12, 2010, Dr. Duchowny's ultimate opinion was that his examination of Javier did not reveal evidence of a substantial motor (physical) or mental impairment and consequently, Javier would not be compensable under the NICA statute. That said, Dr. Duchowny acknowledged that Javier had Attention Deficit Hyperactivity Disorder (ADHD), hypertonia and some fine motor impairment and developmental delays. He also noted that Javier's head was in the third deviation too small for his body and that the fontenelles of his skull had closed, and that as a result, Javier's brain would not grow as Javier grows physically. Dr. Duchowny did not view microcephaly as a "physical impairment," but as a "physical finding on neurological examination," and testified that, in his view, "an impairment would be some problem that prevents one from doing things." However, he also conceded that probably 90 percent of microcephalics have a lower IQ than normocephalics; more often than not, as they age, the majority of microcephalics have other motor or developmental issues, compared with normocephalic children; and for the majority of microcephalic children, these motor or developmental issues are permanent. Dr. Roberto F. Lopez-Alberola, Assistant Professor and Chief of the Section of Child Neurology, Pediatrics, at the University of Miami's Miller School of Medicine, wrote (in pertinent part) in a letter concerning his February 26, 2010, assessment of Javier, when Javier was approximately three-and-a- half years of age, that: PHYSICAL EXAMINATION VITAL SIGNS: . . . Head circumference of 46 cm, which is below the 2nd percentile. GENERAL: Awake, alert, fidgety, and hyperactive, yet very sociable and playful, interactive both physically and verbally. Well nourished. No dysmorphic features. HEENT: Microcephalic, atraumatic, pupils equally round and reactive to light and accommodation. Extraocular movements were full. Occasional eye blinking noted. No craniofacial asymmetry. CARDIOVASCULAR: Irregular rate and rhythm. RESPIRATORY: Clear to auscultation. ABDOMEN: No hepatosplenomegaly, soft and depressible. SKIN/EXTREMITIES: No rash or lesions. No joint deformity or limb asymmetry. No hypo or hyperpigmented skin areas. NEUROLOGIC: Cranial nerves II through XII grossly intact. SENSORY: Romberg was negative. Deep tendon reflexes symmetric. MOTOR: Slightly decreased tone throughout. Fair muscle bulk. No evidence of wasting or atrophy. No pronator drift. COORDINATION: No truncal titubation, however, decreased balance and coordination with slight dysmetria bilaterally. GAIT: No ataxia. ASSESSMENT: In summary, Javier is a 3-year-old young boy with complicated birth history with known developmental delay, making strides, microcephaly, abnormal movements, which are consistent with simple motor tics. Interestingly today, the patient's maternal grandfather accompanied mother and he also has a longstanding history of simple motor tics, which most likely then represent a familial trait. Nonetheless, the EEG which was ordered to rule out any epileptic activity, although these movements are not epileptic in nature, the EEG is not normal and does show epileptiform activity. . . . it is questionable whether the patient's microcephaly is acquired or if indeed was congenital. In terms of the patient's simple motor tic disorder, I have explained to mother the natural history of tics and as long as the tics are not bothering the patient psychologically or emotionally or in any physical form that treatment would be deferred. In terms of the patient's developmental delays, the patient most certainly would benefit from continued therapies including occupational and physical therapy, as the patient's coordination and balance as well as muscle tone are still impaired. I have also recommended aqua therapy. In terms of the patient's behavioral issues, I have recommended behavioral therapy and at some point if the patient's hyperactivity were to become an issue interfering with his behavior and his academic progress, would then consider pharmacotherapy. . . . (emphasis added). For purposes of assessing permanent impairments, the foregoing record appears to state that Javier's head is too small for his body, which may be a birth injury or congenital, and which is a condition that persisted at the date of final hearing, as also discussed by other physicians, including Respondent's expert neurologist, Dr. Duchowny, see Findings of Fact 39-40, that Javier has tics, which are as likely to be congenital or hereditary as they are to be the result of brain injury, and that are not epileptic in nature; that Javier has symmetrical and working limbs, muscles, and joints; and that he is without ataxia, meaning that he has some ability to coordinate body movements. Ataxia is sometimes associated with walking or cerebral palsy. This record also states that Javier evidences dysmeteria (an abnormal condition typically characterized by overestimating or underestimating the range of motion needed to place the limbs correctly during voluntary movement); that some of his muscles are somewhat flaccid; that he is without Romberg's sign8/; and that his gait (walking) is within normal limits. However, the record also states that upon report by his mother, Javier has developmental delays. Dr. Suite, a neurologist, examined Javier on September 17, 2010, and testified on behalf of Petitioner. He rendered a report of his examination, which, together with his testimony, shows that Javier's affect was dull and slow; that he had no history of epileptic seizures; that he could relate some of his history; and that his head circumference is microcephalic. Contrary to a previous treating evaluation, see Finding of Fact 37, some limitation of Javier's lateral spine and range of hip movement was found. Contrary to a previous treating evaluation, see Finding of Fact 41, Dr. Suite found a positive Romberg sign and abnormal gait. He also diagnosed developmental delay, attention deficit disorder, hypotonia, and behavioral difficulties. On August 26, 2011, a brain MRI of Javier (age four years, eight months) was done at Miami Children's Hospital. It concluded: Scattered foci of superatentorial signal abnormality, likely areas of gliosis or dysmyelination, the result of a remote insult. Bilateral hippocampal atrophy, on the left with associated sclerosis. Tiny physiologic pineal cyst and small choroidal fissure cyst. Dr. Castellanos, a board-certified child and adolescent psychiatrist, examined Javier at Dr. Saladrigas' request on October 31, 2011. He diagnosed Javier at approximately five years old, with cerebral palsy, ADHD, problems fulfilling activities of daily living (ADLs), developmental problems related to personal hygiene, and intermittent memory deficits currently manifesting as Javier being unable to remember from day to day where his pull-ups are stored; that he is supposed to place his school gear in his "cubby"; and his being unable to remember where, within his school, his "cubby" is located.9/ Significantly, Dr. Castellanos predicted that Javier's brain will not continue to grow, but the complexity of academic tasks required of him will increase and his ability to cope will diminish; he will become more frustrated; and in the future, he will be even less able to perform academically than at the present time. Ultimately, Dr. Castellanos deferred to psychologists for testing IQ and to teachers to determine what learning disabilities Javier may have. The Extent of Javier's Mental and Physical Impairments Under the NICA Plan, a "physical impairment" relates to impairment of the infant's "motor abnormalities" or "physical functions." "Mental impairment" also addresses functionality, as opposed to mere diagnosis. However, under NICA, the identification of a substantial mental impairment may include not only identifying significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.10/ As his parent, Javier's mother is better positioned than anyone else to observe Javier's day-to-day behavior.11/ In this case, Dr. Saladrigas is a licensed clinical psychologist, and accordingly, despite the inherent natural bias of every parent, her observations and impressions of Javier's functioning are entitled to some greater weight than might ordinarily be accorded a lay-parent.12/ That said, Javier's mother's testimony contains internal contradictions. On the one hand, she testified that she tested his IQ prior to his entering the academic year at St. Thomas Parish School in August 2010, at about age three, and found it to be in the normal range of IQ. On the other hand, she states that such testing does not have much validity until a child is six. She testified that Javier has never had an independent IQ test, but that he had IQ testing by Ketty Gonzalez, without any elaboration on what was determined. Under these circumstances, the undersigned is left with a perception of Javier's possessing a normal IQ at age three. Javier has epileptiform signals on various brain examination, but he has never been diagnosed with epileptic seizures. His mother believes his tics and eye-rolling signal seizures, but no physician or test has confirmed this perception. Javier is bilingual in Spanish and English, because his family speaks both languages. According to his mother, Javier started to speak first words "possibly" before he was one year old, and she considers that Javier met his normal developmental milestone in this regard and later with regard to when he first spoke in sentences. In the past, Dr. Saladrigas has been diligent in seeking out and providing private occupational, speech, and physical therapies for Javier, but at the present time, he is in an Exceptional Student Education (ESE) class in the public school system, which can provide all these therapies. Even now, his mother prefers to pay for occupational therapy in the private sector. She stated that at the present time, Javier's speech and the production of his speech is quite good, and his feeding problems have largely disappeared, so she has temporarily discontinued private speech therapy. At the present time, Javier is physically able to walk without assistance; to use the bathroom by himself, although he wets the bed most nights; to run around the playground when he chooses to do so; and to swing on the swings without assistance. He requires neither braces nor a wheelchair for ambulation. His mother reported that he started walking at thirteen months, which she perceives is a normal age for that developmental milestone. Dr. Castellanos observed that Javier talks a lot and is clumsy with his drawing. He has diagnosed Javier has having cerebral palsy, which is a physical or motor disability, arising in Javier's damaged brain, as opposed to a mental disability, but Dr. Castellanos agrees that Javier is very active and without physical problems ambulating. Javier's mother also commented on Javier's "floppy" aspect, that is, his mild hypotonia or muscle weakness, but she admitted that there is not much Javier cannot now do from a gross motor standpoint. Nonetheless, she perceives a difference in the quality of Javier's gross motor functions in comparison to those of her two-year-old son and her nephews of varying ages. She described Javier's susceptibility to pneumonia due to his lung damage from MAS, for which he has had 10 hospitalizations. He has poor appetite and a general fraility as a result of the lung damage. She uses a nebulizer with him and a "Shake Vest" to break up the congestion in his lungs. He uses oxygen when he travels. Next to his mother, Javier's teachers are probably best-suited to describe how Javier functions daily and how he learns.13/ Javier has been placed in a succession of five pre- schools where he has had little success and from which he was either asked to leave as a result of behavioral problems or was withdrawn by his mother because, according to her, the teachers in those schools, who were not ESE-qualified, "complained" about Javier's disruptive behaviors. Javier also had not been able to interact successfully with the other "normal" children in any of these locations. Dr. Saladrigas perceives Javier's socialization problems as related to hyperactivity; as not honoring the "personal space" boundaries required by other children; and as his withdrawal from interaction with other children when he is not successful socializing with them or getting their undivided attention. Her perceptions in this regard were echoed by Kitty Finneran, associate head of St. Thomas Parish School. Dr. Saladrigas placed Javier at St. Thomas Parish School's summer camp in June 2010, when he was three-and-a-half years old. She sought no special accommodation for him, and, in fact, withheld from school/camp staff some information regarding his difficulties in his prior pre-school environments, so that he would not be pre-judged. Initially, in the first part of the June 2010, summer camp, experienced school staff viewed Javier as being in the normal range for his development, based upon their observation and conversation with him and his mother. After a period of observing how Javier interacted with other children at camp, they recognized that he had the types of behavioral, social, and learning problems testified-to by his mother and Ms. Finneran. Kathleen Finneran is the associate head of St. Thomas Parish School. She has been associated with St. Thomas for 43 years and has been an administrator there for 17 years. Ms. Finneran presided over the summer camp activities when Javier was enrolled there in June 2010 and over the school year that began in August 2010. She described Javier as having no focus; doing inappropriate things; invading others' personal space; being unable to grasp "why" he was forbidden to "stomp" repeatedly on a teacher's foot, and persisting in such behavior despite being told not to do so. She described him as retreating to the swings from other playground play when he could not get other children to focus on playing with him or playing what he wanted them to play and as frightening them. Javier's mother described Javier's home play then, and at the present time, as being almost exclusively on the swings or dressing up, pretending to be a fictional character, and running around the house in costume. She maintained that he could parallel play with toys, but could not play with toys interactively with his brother or cousins. She indicated that Javier's role-playing had carried over to his annoying other visitors at Disney World when the family had gone there in the summer of 2011. On that trip, Javier imitated the cartoon character actors by blowing kisses and asking other park attendees to dance with him. Dr. Saladrigas, Ms. Finneran, and Dr. Castellanos commented on Javier's propensity to constantly sing to himself. His mother says he learns songs quickly. In August 2010, Javier began his three-year-old pre- school program at St. Thomas. He was not able to function in a regular class with two teachers and 15 other children. One teacher had to be assigned to exclusively manage him. Dr. Saladrigas was ultimately asked to remove Javier from St. Thomas Parish School, which she did. Javier is currently enrolled in an "inclusive" ESE program in the public school system. His mother is credible in her assertion that he has not yet been classified as to type of ESE student at this early grade level. However, so far, he seems to be functioning adequately in an ESE "inclusionary" class of 50 percent ESE students and 50 percent mainstream students. Analysis It is the child's ability to function mentally which must control a determination of permanent and substantial mental impairment or lack thereof. Javier has been diagnosed with ADHD, developmental delays, dull affect, slow speech, problems with ADLs, and memory deficits. Although he has been unsuccessful to date in mainstream educational environments, such as St. Thomas Parish pre-school and camp and in what appear to be other very informal pre-school environments, there are no standardized IQ or other intellectual tests whereby his degree of mental impairment or ability to learn can be assessed. In a proper case, proof that a child cannot learn once he is placed in an accredited ESE class could support a finding of permanent and substantial mental impairment, but there is no such proof here, and NICA reasonably points out that Javier has made good progress in private, one-on-one speech therapy, physical therapy, and occupational therapy. Even so, there can be no serious debate that Javier's microcephalic head constitutes a permanent abnormal physical condition, and that his closed fontenelles mean that his head and his brain will not continue to grow, as he otherwise physically grows and matures, or that he will have limited intellectual functioning as a result. These factors, together with his failure to understand correction, his inability to remember physical things and locations, his inability to sequence tasks, and his failure to process memory, compel a finding that Javier has, indeed, sustained a "permanent and substantial mental impairment." However, the evidence falls short of establishing that Javier has sustained a "permanent and substantial physical impairment." Petitioner asserts that because all of Javier's mental impairments arise from the physical injury to his brain, which injury is visible on MRI within the hippocampus, then it must follow that he is permanently and substantially physically impaired, as well as permanently and substantially mentally impaired. This argument is not persuasive. The language employed by the Legislature in enacting section 766.302(2), recognizes a distinction between "injury" and "impairment." It provides compensation only for an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury . . . which renders an infant permanently and substantially mentally and physically impaired." Because of the clear language selected by the enactors, "injury" and "impairment" cannot mean the same thing. By statutory context, the physical or mental "impairment" must come to pass because of the brain or spinal cord "injury." Moreover, "impairment" has, throughout the history of the Act, been equated with functional defect or loss of functionality.14/ Javier has lung damage and significant recurrent pneumonia, probably related to MAS and probably not related to his brain injury in the statutory period, but his lung problems have been considered as part of the sequelae of the brain injury which occurred in the statutory period. Even so, the treatments Javier has undergone and the maturation process seem to have lessened the physical problems with his lungs. Javier has cerebral palsy and mild, generalized hypertonia (decreased muscle tone) directly related to his brain injury in the statutory period. Yet, he can perform all of the physical demands of daily living. He has gross control of his head and use of his hands, arms, and legs, with only some mild leg-shaking. His tics and the rolling back of his eyes may or may not be congenital, but they are intermittant. His fine motor control development is stunted, but he is able to sit alone, stand alone, walk, run, swing, and play alone or with others. Javier can see, hear, smell, and speak. There is no evidence he has an impaired sense of touch. Javier met his early developmental milestones. There is no evidence suggesting that he cannot be trained to feed and groom himself, despite current personal hygiene issues. He is toilet trained, except at night, and his medical records show his amount and frequency of bedwettings do not amount to eurinesis. On its own, this scenario does not amount to permanent and substantial physical impairment. The record also does not support a finding that any or all of Javier's physical impairments present significant barriers to learning and social development.
Findings Of Fact Jer’Donis Pringle was born on June 24, 2011, at Heart of Florida Regional Medical Center located in Davenport, Florida. Jer’Donis weighed 3,004 grams at birth. NICA retained Donald Willis, M.D., a Florida board- certified obstetrician and gynecologist specializing in maternal- fetal medicine to review the medical records of Jer’Donis. In an affidavit dated July 2, 2013, Dr. Willis opined as follows: Based upon my education and experience, it is my professional opinion, within a reasonable degree of medical probability that the pregnancy was complicated by Maternal Diabetes, that fetal testing at 34 weeks suggested fetal distress, that based on available medical records, the mother did not appear to be in labor at time of delivery by Cesarean section, and that the baby suffered severe oxygen deprivation and resulting brain damage. Overall findings suggest that severe brain injury occurred at some time prior to hospital admission and, therefore, prior to delivery. A review of the file does not show any opinion contrary to Dr. Willis’ opinion that Sherita Leeks was not in labor prior to delivery and that Jer’Donis suffered severe oxygen deprivation resulting in brain injury prior to admission to the hospital and delivery is credited.
Findings Of Fact Daniel Flint was born on May 3, 2014, at Bayfront Health Spring Hill in Spring Hill, Florida. Daniel weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Daniel's medical records. In a medical report dated June 2, 2015, Dr. Willis made the following findings and expressed the following opinion: In summary, fetal bradycardia developed during labor and required emergency Cesarean delivery. The baby was severely depressed at birth with Apgar scores of 0 at one and five minutes. A heart rate was not present until after 10 minutes of vigorous resuscitation. The initial blood gas was consistent with acidosis. The base was -22. Seizures occurred within the first hour of life. The baby was diagnosed with HIE and managed with whole body cooling. The baby was found to have a single mutation for the Prothrombin II mutation. I do not believe this was a factor in the oxygen deprivation at birth. 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. Seizure activity shortly after birth would be consistent with brain injury as a result of the oxygen deprivation. I am unable 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, and that seizure activity shortly after birth would be consistent with brain injury as a result of oxygen deprivation is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Daniel. Dr. Duchowny reviewed Daniel's medical records and performed an independent medical examination on him on May 13, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows: In SUMMARY Daniel's neurological examination reveals very mild plantar-grade foot positioning without corroborating evidence of increased muscle tone. The elevated (3+) knee jerks are consistent with an extremely mild spastic diparesis. He additionally evidences borderline microcephaly. I was surprised by this finding as his head appeared normal to inspection; I re-measured the head circumference several times to confirm. Daniel's motor impairment is judged to be mild and I did not find evidence of many [sic] mental impairment. A review of medical records sent on April 16th reveals that following Daniel's birth at Bayfront Health at Springhill Hospital at 38 4/7 weeks gestation he was transferred to All Children's Hospital. Because of concern over low Apgar scores of 0, 0, 2, 4 and 5 at 1, 5, 10, 15 and 20 minutes, lethargy and tremors, he was placed in a hypothermic protpocol at 1 hour of life which was formally implemented upon arrival at All Children's Hospital. Daniel underwent total body cooling for 3 days. He developed seizures within 35 minutes of delivery and was treated with phenobarbital. Dopamine and hydrocortisone were administered. His nursery course was complicated by MRSA colonization which stabilized. He was found to be heterozygous with a prothrombin gene mutation. An MRI scan of the brain obtained on May 12 revealed a questionable area of thrombosis but a repeat MRI scan on May 22 was significant only for enlarged extraaxial spaces. In summary, Daniel has done remarkably well and now has only a very mild motor impairment affecting his gait and to a lesser degree his oroalimentary coordination. His head growth is borderline. I believe the hypothermia protocol played a role in improving his long- term prognosis. Daniel does not have either a substantial mental or motor impairment and I am not recommending him for consideration within the NICA Program. Dr. Duchowny was deposed on January 15, 2015, wherein he testified in pertinent part as follows: Q. Okay. All right. And these records discuss and describe certain issues, and I know you said you read the mom's deposition. She raised some issues about the child's coordination running or about some of the swallowing issues. Is it fair to say that any issue that's been raised, either by Mom in her deposition or by any of the health care providers in the records that you reviewed or any issues that you noted in your report, are all related to this developmentally based disorder that was established in utero? A. That's what I believe, yes. Q. And is that your opinion within a reasonable degree of medical probability? A. It is. * * * Q. Doctor, are you familiar with the term or definition of birth-related neurological injury as it's used with Chapter 766 of the Florida Statutes? A. I believe so, yes. Q. Okay. So I want to ask you then: Do you have an opinion whether Daniel is permanently and substantially mentally and physically impaired? MS. DAWSON: Form THE WITNESS: I do BY MR. GRACE: Q. What's that opinion Doctor? A. I do not believe that he has a substantial mental or physical impairment. Q. And just in summary fashion – I'm not asking for you to re-testify about all your prior opinions. But in summary fashion, tell us the basis for that opinion and where you gathered your support. A. It's because I believe that Daniel's motor dysfunction is mild and primarily is associated with incoordination which will improve over time. And I also believe that his delayed expressive language development will also improve over time. So they're mild now and will continue to improve. Therefore, neither domain represents a substantial impairment. Q. Is that opinion given within a reasonable degree of medical probability? A. Yes. Q. Doctor, in response to Mr. Valenzuela's question, you briefly touched on MRI scans that were done. Did you review the actual films, or did you rely on the reports? A. I can't recall. I have not reviewed them recently. If I had to guess, I would say that I relied on the reports at that time, but I honestly can't recall. Q. Okay. There were two scans done. And with regard to those scans, you indicated in your report on page 5 there was a questionable area of thrombosis? A. Yes, that was on the first one I believe. Q. All right, what is thrombosis? A. Blood clot. Q. And are you able to tell us what you attribute that clot to? A. I don't know. Q. Then there was a repeat MRI scan done on May 22nd, correct? A. Yes sir. Q. All right. And what were the findings on that? A. That showed no abnormalities in the brain, no evidence of thrombosis, and an extra-axial collection of fluid, meaning a collection of fluid outside the brain, not within the brain substance itself. Q. With regard to your opinion that Daniel has not suffered a birth-related neurological injury, did you rely on these MRI's to formulate that opinion? A. Yes, that was one component. Q. Okay. And how did you rely on these? What's the significance? A. Well, I don't think it's -- that you can rely on any one aspect. What I did was factor the findings on the MRI with the history and with my findings on physical examination as well as the history of Daniel's development. Putting all of that information together, in my opinion, yields a consistent pattern and diagnosis of developmental delay. I thought Daniel's examination revealed developmental findings, as I've stated previously. And the fact that his follow-up MRI showed no evidence of a structural brain injury, in my opinion, supported that diagnosis. Dr. Willis is of the 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 post- delivery period, and that seizure activity shortly after birth is consistent with brain injury as the result of oxygen deprivation. However, 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. Duchowny's opinion that Daniel does not have a substantial mental or physical impairment 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. Duchowny that Daniel does not have a substantial mental and physical impairment. While Daniel has some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.
The Issue The issue in this case is whether Everett Luis Northup sustained a birth-related neurological injury.
Findings Of Fact Katrina Northup (formerly Katrina McGuff) and Richard Northup are the natural parents of Everett Luis Northup. At all times material to this proceeding, Katrina Northup was an obstetrical patient of Wayne Blocker, M.D., and Dr. Blocker was a "participating physician" as defined in section 766.302(7), Florida Statutes. Dr. Blocker provided obstetrical services in the course of labor and delivery at the birth of Everett. Ms. Northup did not experience any significant problems during her prenatal course. On August 21, 2009, she presented to Brandon Regional Hospital, which is a licensed Florida hospital. She was 34.1 weeks pregnant. Beginning at 8:58 a.m., Ms. Northup was started on Pitocin. By 2:23 p.m., the baby's station was -1. At 3:50 p.m., Ms. Northup's membranes ruptured. At 4:41 p.m., the baby was experiencing increasing fetal tachycardia, and the mother's efforts at pushing were nonproductive. A decision was made to use vacuum extraction to facilitate the delivery. Dr. Blocker applied a KIWI vacuum extractor to the baby's head, but a seal could not be achieved. A soft cup vacuum extractor was used to deliver the baby's head to the perineum so that Ms. Northup could push the baby out. Four pulls, two of which were pop offs, were used. Ms. Northup was able to push the baby out after the use of the vacuum extractor. The baby experienced shoulder dystocia during delivery. This means that there was a delay in descent because the baby's shoulder was impinged on the mother's pubic bone. The shoulder dystocia was corrected using a MacRoberts maneuver, which is flexing the mother's hips to give more room in the pelvis. The shoulder dystocia did not require additional force from the vacuum extractor. Everett was born live on August 21, 2009, at 4:45 p.m. He weighed 3,875 grams at birth. Everett was large for his gestational age. The hospital's admission summary for Everett described his condition at time of delivery as follows: Infant was delivered pale, floppy, and with a poor respiratory effort. Infant was suctioned PO and nasally and stimulated . The initial HR was <100 but exceeded 100 by 1 minute of age. Respirations became more regular and color became ruddy with a rapid HR. Tone remained poor and there was bruising of the left arm and ballotable fluid in the scalp. After delivery, Everett's mouth, nose and pharynx were suctioned and he was given blow-by oxygen for two minutes. Everett's Apgar score at one minute of age was recorded as seven and, at five minutes of age, was eight. Apgar scores are designed to define a baby's responsiveness and cover five different categories: heart rate, respiration, color, reflex activity or reflex responsiveness, and muscle tone. Each of the categories can be scored a zero, a one, or a two. At one minute of life, Everett's heart rate was greater than 100 beats per minute; he had a good cry; there was some flexion of the extremities; he had a grimace; and his body was pink and extremities were blue. At five minutes of life, Everett's heart rate was greater than 100 beats per minute; he had a good cry; he had active motion; he had a cry or active withdrawal; and he was blue/pale. Everett's initial blood gases were recorded as a pH of 7.20, which is considered a mild to moderate metabolic acidosis. Everett was admitted to the Neonatal Intensive Care Unit (NICU). His admission summary describes the findings of the admission physical examination as follows: CONDITION: Pink, quiet and responsive. HEENT: Anterior fontanelle soft, open, and flat, red reflexes present bilaterally, subgaleal bleed with ballotable fluid, nares patent and palate intact. CARDIAC: Normal sinus rhythm with tachypnea, weak pulses and poor perfusion, CRT -5 seconds, precordium quiet and no murmur. Abdomen: Soft and nondistended abdomen, good bowel sounds, 3-vessel cord and liver edge palpable at the costal margin. GU: Normal male features for gestational age, testes descended bilaterally and patent anus. NEUROLOGIC: Quiet and responsive with fair muscle tone and reflexes for age. SPINE: Neck supple without masses, spine straight and intact, no sacral dimple noted and no clavicular fracture palpated bilaterally. EXTREMITIES: Symmetrical movements and no hip clicks. SKIN: Bruising over left arm. Everett's heart rate was recorded on August 21, 2009, as 208 at 5:00 p.m., 166 at 5:30 p.m., 172 at 6:00 p.m., and 168 at 8:30 p.m. Blood pressures taken at the same time intervals were 55/20, 48/20, 45/28, and 70/47. The initial glucose level for Everett was 29. This hypoglycemia was corrected with a DIOW bolus of 3 ml/kg. Everett had a respiratory distress syndrome, which was attributed to his premature lungs. This syndrome was corrected with intubation and the use of surfactant. He was intubated for approximately nine hours and then placed on room air. On August 27, 2009, Everett was discharged from the NICU. When Everett was 11 months old, his parents expressed concerns to his pediatrician that Everett was not meeting his developmental milestones. The pediatrician referred Everett to a pediatric neurology specialist, who prescribed an MRI. The MRI showed a "symmetric increased T2 signal within the periventricular white matter with associated atrophy of the corpus callosum, likely related to leukomalacia secondary to prematurity." On February 1, 2012, pediatric neurologist, Francis Filloux, M.D., notes her diagnostic impressions: Cerebral palsy with a spastic diplegia pattern or possible spastic triplegia, with the best function in the left upper extremity. Periventricular leukomalacia, by report from the prior MRI scan. Associated neurodevelopmental impairments. History of very mild prematurity. Everett is permanently and substantially mentally and physically impaired. Everett did not suffer an injury to the brain during resuscitation in the immediate post delivery period in a hospital. Petitioners retained Jeffrey Koren, M.D., and Stephen Glass, M.D., as expert witnesses. Respondent retained Donald Willis, M.D., and Michael Duchowny, M.D., as its expert witnesses. Dr. Glass is board-certified in neurology with a special competence in child neurology, and he is board-certified in pediatrics. He has been practicing as a pediatric neurologist for 32 years. Dr. Glass is currently an associate professor of neurology and pediatrics at the University of Washington. Dr. Glass opined that Everett sustained an injury to the brain caused by mechanical injury, due to the multiple vacuum extractions which occurred in the course of labor which rendered Everett permanently and substantially physically and mentally impaired. He believes that the injury to the brain caused by the use of the vacuum extraction device used during the delivery process caused a reduction of blood flow to the periventricular areas of the brain which caused periventricular leukomalacia (PVL), which led to cerebral palsy. Dr. Koren is board-certified in gynecology and has been practicing obstetrics and gynecology for over 30 years. He opined that the use of the vacuum extraction caused a traumatic injury to the scalp of Everett causing a subgaleal bleed and a diminished blood flow to the periventricular areas of the brain, which caused the PVL. Dr. Willis is fellowship trained in maternal fetal medicine and board-certified in obstetrics and gynecology and maternal fetal medicine. He began in private practice in 1980 and has taught at several universities. Since 2000, he has been doing consultations in maternal fetal medicine. Dr. Willis is of the opinion that Everett did not suffer a brain injury which was mechanical or due to oxygen deprivation during labor and delivery. Based on his readings of Everett's fetal heart-rate monitor, there was no evidence of fetal distress. Everett's Apgar scores were normal with a score of seven at one minute and eight at five minutes. The umbilical cord pH was not consistent with acidosis or hypoxia that would be significant enough to cause significant brain injury. The subgaleal hematoma caused by the use of the vacuum extractor was not clinically significant. Everett did not require a transfusion, and he was not anemic. By the second day of Everett's life, he had a hematocrit of 53, which is normal for a newborn. Dr. Duchowny is a pediatric neurologist who directs the neurology training program at Miami Children's Hospital. He is a professor of neurology and pediatrics at the University of Miami School of Medicine and is a full professor at the Florida International University School of Medicine. His clinical practice is based out of Miami Children's Hospital. Dr. Duchowny is board-certified in pediatrics, neurology with special qualification in child neurology, and clinical neurophysiology. He performed an independent medical examination of Everett on December 12, 2011. Dr. Duchowny opined that Everett did not suffer a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during the course of labor, delivery or resuscitation in the immediate post delivery period. He explained the basis for his opinion as follows: [A]lthough Everett's neurological problems were substantial in both, the mental and motor domains, a review of his medical records did not support the belief that these abnormalities were, in fact, acquired during the labor or delivery. Everett was a pre-term infant. He was large for gestational age, but he was born at 34 weeks gestation, but if you look through the neonatal course, it's clear that his was relatively benign. For example, Everett's Apgar scores seven and eight at one and five minutes of life. These scores were quite good. His cord blood gases also were mildly abnormal, but really very little evidence of any significant problem. His cord pH was 7.18. He had a base excess of minus 10.3, and these are mild findings, and consistent with his overall neonatal course, during which he actually did very well. For example, there was no evidence of overall systemic involvement, apart from some transient hypoglycemia that was adequately treated, and he did not have multi-organ system failure, liver involvement, cardiovascular collapse. He certainly wasn't comatosed. He was transiently intubated but did not require a prolonged course of ventilator support. Sepsis was suspected, and he was treated with antibiotics, but ultimately his cultures were negative, and he went home without any significant problems or complications in the newborn period. Given the fact that his MRI scan of the brain ultimately revealed damage in the form of periventricular leukomalacia, and thinning of the corpus callosum, it would appear that his deficits could not have been acquired in the course of labor, delivery or the immediate post-partum period. Rather, I believe that Everett's brain injury was acquired prior to birth, likely as a consequence of his prematurity. Had it been acquired during labor and delivery, I would have expected a much more severe postnatal course, given the MRI findings and his neurological examination. The opinions of Dr. Willis and Dr. Duchowny are credited. Everett did experience a subgaleal hematoma during the birthing process. In order for a subgaleal hematoma to cause brain damage, it would have to be a substantial loss of circulating blood volume which would lead to hypovolemic shock. Everett did not have hypovolemic shock nor did Everett experience any seizures. If the subgaleal hematoma had been clinically significant, Everett would have been given a blood transfusion. He was not given a blood transfusion and he was not anemic. The subgaleal fluid collection was small and easily reabsorbed. Both Dr. Glass and Dr. Koren opined that the Apgar scores were incorrect and should have been substantially lower. However, their opinions are based on the descriptions of Everett at the time of delivery, which were pale, floppy, and with poor respiratory effort. At delivery, Everett's heart rate was less than 100 beats per minute. After he was suctioned and stimulated, Everett's heart rate was greater than 100 beats per minute and his color was ruddy. Everett had a difficult birth, which was reflected in the descriptions of him at delivery. However, within a minute of delivery he had bounced back and had a normal Apgar score. The greater weight of the evidence establishes that Everett did not suffer an injury to the brain during labor and delivery due to oxygen deprivation or mechanical injury. More likely than not the PVL and thinning of the corpus collosum are findings associated with Everett's prematurity and not a result either directly or indirectly of the vacuum extraction delivery and the resultant subgaleal hematoma.
