Findings Of Fact Zackary K. Farnum was born on August 11, 2008, at North Florida Regional Medical Center in Gainesville, Florida. Zackary weighed 3,620 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Zackary to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report: In summary, labor was induced at term due to rupture of the membranes. A prolonged FHR deceleration, lasting about 4 minutes occurred at about five hours prior to birth. However, the baby was not depressed after birth with a normal Apgar score of 8 by five minutes and a normal cord blood pH of 7.29. The newborn hospital course was not complicated by multisystem organ failure, which is commonly seen with birth asphyxia. The baby had some initial difficult feeding and one episode of arching of the back was noted. Clinical findings were no [sic] substantial enough to require further evaluation, such as EEG or MRI. Overall, review of the medical records does not clearly identify a hypoxic event during labor or delivery that would have resulted in substantial brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Zackary and to review his medical records. Dr. Duchowny examined Zackary on May 21, 2014, and opined as follows in his medical report: In summary, Zackary's neurological examination reveals evidence of left-sided motor findings including left hemihypotrophy, left mild spastic weakness, and left hyperreflexia with a left Babinski sign. Despite these findings, he is able to accomplish most tasks reasonably well and is well-adjusted to his motor deficits. His cognitive functioning is appropriate for age, although he is behaviorally overactive and impulsive. His speech dysarthria is likely developmentally based. Medical records confirm the parental history of a difficult delivery. Zack's Apgar scores were 2 and 8 at 1 and 5 minutes and there was evidence of thick meconium. A tight nuchal cord was removed at birth. The neonatal course was subsequently benign. I am familiar with the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") and the standards imposed by the Plan for compensability of potential claims. Based upon my review of the medical records as described herein and in my report, and further based upon my evaluation of ZACKARY FARNUM, I have formed an opinion as to whether ZACKARY FARNUM qualifies for compensation under the plan. I regard Zack's motor difficulties as mild to moderate and his evaluation today does not provide evidence for a substantial mental impairment. I suspect that his right hemisphere stroke was acquired in utero but I have not had an opportunity to personally review the MR images. However, Zackary does not have a substantial mental impairment. I therefore believe that he should not be considered for inclusion within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that Zackary does not have a substantial mental or physical impairment. Dr. Duchowny’s opinion is credited.
Findings Of Fact Landon Pillow was born on November 29, 2010, at North Florida Regional Medical Center in Gainesville, Florida. Landon weighed 3,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Landon, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows: In summary, there was a non-reassuring FHR pattern during labor. It is unlikely this resulted in any significant oxygen deprivation to the fetus, based on a cord blood gas pH > 7.0 and a normal newborn hospital course. Babies with birth related hypoxic brain injury will generally have multi-organ failures during the newborn period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis reviewed additional medical records on January 16, 2014, and, based on his review of those records, opined as follows: The additional records do not change any of my opinions concerning this case. The child suffered a brain injury, but the etiology is still undetermined. Based on the cord blood gas pH > 7 and a normal newborn hospital course after delivery, it does not seem reasonable to time the brain insult as birth related. NICA retained Michael S. Duchowny, M.D., to examine Landon and to review his medical records. Dr. Duchowny examined Landon on April 30, 2014, and gave the following opinion: In summary, Landon’s neurological examination today was extremely limited because of his postictal state. However, there were no specific focal or lateralizing findings despite the history of a left hemisphere infarct and porencephalic cavity. A review of medical records sent on February 26, 2014 confirms the history obtained today which revealed no evidence of a neurological injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery, or the immediate postnatal period. Landon’s cord blood pH was 7.25 and the base excess was -4. Both values are near-normal. Although the neurological examination was suboptimal, the history obtained today from the family and from medical records indicate that Landon’s neurological impairment was acquired prenatally. I therefore believe that he should not be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny that there was no obstetrical event that resulted in injury to the brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. Their opinions are credited.
The Issue The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.
Findings Of Fact Princess was born on April 27, 2018, at St. Mary’s Medical Center in West Palm Beach, Florida. Princess was a single gestation and her weight at birth exceeded 2500 grams. As set forth in greater detail below, the unrefuted evidence establishes that Princess did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Saulsberry and Princess and opine as to whether Princess sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. On November 22, 2019, Dr. Willis authored a report that included his findings and opinions. The report provides, in pertinent part, as follows: I have reviewed the medical records, pages 1-1,361, regarding [Princess Smith]. The mother was a 30 year old G4 P3003 with “scant” prenatal care. Medical history was positive [f]or Hypertension, Gestational Diabetes and a drug screen positive for THC. Two prior deliveries were by Cesarean section. She presented to the hospital at 38 6/7 weeks gestational age with uterine contractions and bleeding. Cervical dilation was 3 cm at 70% effaced. Placenta abruption was suspected and repeat Cesarean section was done. Operative not [sic] describes presence of blood clots in the uterine cavity, consistent with placental abruption. Birth weight was 3,095 grams. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. Newborn hospital course was benign. The baby was breastfeeding shortly after birth. The child was in Foster Care at some point after birth. Physical Therapy appointments were made for uncoordinated movement, avoiding movement on the left side. At 7-months of age, Developmental delay was noted. In summary, the mother presented at term with placental abruption in labor. Repeat Cesarean section resulted in delivery of a newborn with Apgar scores of 9/9. No resuscitation was required after birth. Newborn hospital course was benign. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post-delivery period. In his affidavit dated October 2, 2020, Dr. Willis affirmed that the statements and opinions contained in the above-quoted report were true and correct and all within a reasonable degree of medical probability. The undisputed findings and opinions of Dr. Willis are credited. The undersigned finds that Princess did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered her permanently and substantially mentally and physically impaired.
Findings Of Fact Scott was born on September 14, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Karm Alvarez, M.D., Julia King, D.O., and Camille Christelle Imbo-Nlogo, M.D., provided obstetrical services at Scott’s birth.1 Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Scott’s medical records and condition. NICA sought to determine whether Scott suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Scott experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Scott permanently and substantially mentally and physically impaired. Dr. Willis reviewed Scott’s medical records and noted that: The mother was admitted to the hospital at 36 weeks for induction of labor due to severe Preeclampsia. * * * The baby was depressed at birth. … The baby was floppy and cyanotic at birth with an initial heart rate < 100 bpm. Bag and mask ventilation was started with good response. The baby was taken to the nursery on oxygen. * * * 1 No evidence was presented to the undersigned regarding whether these doctors were “participating physicians” under the Plan at the time Scott was born. See § 766.302(7), Fla. Stat. Neurologic exam was abnormal after birth and with no improvement and the abnormal [arterial blood gas], cooling protocol was initiate for suspected hypoxic-ischemic encephalopathy (HIE). * * * The newborn hospital course was complicated by respiratory distress, elevated liver functions and mild thrombocytopenia … . Head Ultrasound after birth was normal. Continuous EEG during the initial 4 days of life was reported as normal. MRI on DOL 7 was reported as normal. * * * There was an apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post- delivery period. Fortunately, the oxygen deprivation does not appear to have resulted in brain injury, based on a normal MRI on DOL 7. Dr. Willis concluded, within a reasonable degree of medical probability, that “there was no apparent obstetrical event or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate post-delivery period.” Dr. Bello-Espinosa agreed with Dr. Willis that Scott did not suffer injuries that qualify for inclusion in the NICA Plan. Dr. Bello-Espinosa reviewed Scott’s medical records, as well as conducted an independent medical examination of Scott on August 28, 2020. Dr. Bello-Espinosa opined, within a reasonable degree of medical probability: Scott is an Eleven and a half month-old boy [with] history of therapeutic cooling for hypoxic-ischemic encephalopathy which occurred at birth. Scott’s comprehensive neurological examination is normal today. There was no evidence of upper or lower motor neuron signs, nor finding to indicate any residual encephalopathy or brain dysfunction. His development and cognitive abilities are appropriate for his age despite his history of perinatal asphyxia. Considering the clinical presentation, I do feel that there is not enough evidence to recommend Scott is included in the NICA program. Dr. Bello-Espinosa concluded that Scott does not suffer from a permanent and substantial mental or physical impairment. Dr. Bello- Espinosa did not find any evidence of neurological injury related to Scott’s birth. Based on the statements from Dr. Willis and Dr. Bello-Espinosa, NICA determined that Petitioners’ claim was not compensable under section 766.302(2). A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bello-Espinosa. Their opinions are credible and persuasive.
Findings Of Fact Based upon Petitioners and Respondent’s stipulation, the following facts are found: Kieara Johnson and Joshua Maier (Petitioners) are the parents and legal guardians of Kayden Maier (Kayden), and are the “Claimants” as defined by section 766.302(3), Florida Statutes. Kayden incurred a birth-related neurological injury as that term is defined in section 766.302(2), which was the sole and proximate cause of Kayden’s injury. At birth, Kayden weighed 3,830 grams. Jose Llinas Messeguer, M.D., and Richard Strathmann, M.D., rendered obstetrical services in the delivery of Kayden, and at all times material to these proceedings, were “participating physicians” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Kayden was born. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including any attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
