The Issue At issue in this proceeding is whether obstetrical services were rendered by a "participating physician" during the birth of Antonio John Stutmann.
Findings Of Fact Fundamental findings Donna Stutmann is the mother and natural guardian of Antonio John Stutmann, a minor. Antonio was born a live infant on July 2, 1998, at Holmes Regional Medical Center, a hospital located in Brevard County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services during Antonio's birth was Diane Kelly, M.D. At the time, Dr. Kelly was a full-time employee of the State of Florida whose practice was confined to a county health department (the Brevard County Health Department). Dr. Kelly's status under the Plan Dr. Kelly, also known as Diane Kelly Morrill, M.D., (license number ME0047018) was employed full-time by the State of Florida from 1989 through 1999, and confined her practice to the Brevard County Health Department. During that period, from 1989 through 1997, Dr. Kelly paid the $250 assessment required of all physicians, other than "participating physicians." Section 766.314(4)(b) and (c), Florida Statutes (1989). For the years 1997 and 1998, following an amendment to Subsection 766.314(4)(b)4f, Dr. Kelly, as a full-time employee of the State of Florida whose practice was confined to a county health department, was exempted from payment of the $250 annual assessment. Subsection 766.314(4)(b)4f, Florida Statutes (1997). For the year 2000, following termination of employment with the State of Florida, Dr. Kelly again paid the $250 annual assessment required of all physicians, other than "participating physicians." At no time did Dr. Kelly ever elect to participate in the Plan or pay the assessment of $5,000 required for participation. Consequently, for reasons appearing more fully in the Conclusions of Law which follow, Dr. Kelly was not, at the time of Antonio's birth or at any other time, a participating physician in the Plan.
Findings Of Fact Addyson Tilka was born on June 22, 2012, at Bayfront Medical Center, Inc., located in St. Petersburg, Florida. Addyson weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Addyson. In an affidavit dated August 3, 2016, Dr. Willis opined as follows: In summary, the baby was delivered prematurely at 34 weeks due to premature rupture of the membranes. Apgar scores were 5/8. The baby had respiratory distress syndrome of prematurity. Oxygen and ventilation support was required for respiratory distress. Neurologic exam was appropriate for gestational age. The baby did not have seizures. No head imaging studies were done during the newborn hospital course. There was no apparent obstetrical event that resulted in loss of oxygen deprivation or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Addyson and to review her medical records. Dr. Sigurdardottir examined Addyson on January 20, 2016. In an affidavit dated August 5, 2016, Dr. Sigurdardottir summarized her examination of Addyson and opined as follows: NEUROLOGICAL EXAM: Mental status: Addyson is a beautiful, interactive girl who speaks in full sentences with minor pronunciation difficulties. She has no autistic features and seems age appropriate in all aspects. Cranial nerves are intact. Pupils are equal and reactive to light. Visual fields are full. There is nystagmus, no amblyopia, no strabismus. Her facial expressions are symmetric. There is no hearing abnormality noted. Her motor exam reveals normal muscle tone, motor strength, symmetric reflexes are present. Balance and coordination seems grossly intact for age. ASSESSMENT AND PLAN: In summary, here we have a 3 year 6 month old girl who was born premature at 34 weeks and needed a neonatal intensive care unit (NICU) stay due to respiratory compromise. There are, however, no clear concerns of her development at this time. No suggestions of physical impairment. There is nothing on history or record review that suggests neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. Results as to question 1: The patient is found to have no substantial physical or mental impairment. Results as to question 2: there is no evidence of perinatal neurologic depression and no evidence of ischemic injury at birth or in the immediate postnatal period. Results as to question 3: We would expect full life expectancy as no noted abnormalities are found on exam. In light of the above-mentioned details, I do not recommend Addyson to be included in the Neurologic Injury Compensation Association program and will be happy to answer additional questions. All of my opinions are within a reasonable degree of medical probability. 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 expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Addyson does not have a substantial physical or mental impairment. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/
Findings Of Fact Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21, 1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams. Darius was delivered by Peter Verrill, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.
The Issue Whether Nathan Eric Powell 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 Preliminary matters Nathan Eric Powell (Nathan) is the natural son of Paulette Schwab-Powell and Norman Powell. He was born a live infant on September 23, 1993, at North Florida Regional Medical Center, a hospital located in Gainesville, Alachua County, Florida, and his birth weight was in excess of 2,500 grams. The physicians providing obstetrical services during the birth of Nathan were Eduardo Marichal, M.D. and Gregory Bailey, M.D. NICA concedes that Eduardo Marichal, M.D., was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 2/ Nathan's birth and injury Paulette Schwab-Powell (Mrs. Powell) was admitted to North Florida Regional Medical Center at or about 6:30 p.m., September 22, 1993, in active labor. At the time, Mrs. Powell was slightly post-term, with an estimated date of delivery of September 11, 1993, and her prenatal course had been essentially uncomplicated. Mrs. Powell continued to have regular uterine contractions and at 10:25 p.m. her membranes were artificially ruptured, with clear fluid noted. Mrs. Powell continued progressing, and became completed dialated at 4:30 a.m., September 23, 1993. Thereafter, at or about 6:15 a.m. pushing was started, with assistance of a vacuum extractor. At 7:45 a.m., due to arrest of descent due to cephalopelvic disproportion, vacuum extraction was abandoned and the decision was made to proceed with a cesarean section. Mrs. Powell was taken to the operating room where a cesarean section was performed, and Nathan was delivered at 8:27 a.m. Upon delivery, Nathan required resuscitation, and his Apgar scores were 2 at one minute and 8 at five minutes. Within twenty-four hours of birth, Nathan developed intermittent tremors in the left leg, which were categorized as suspected seizures, and on September 24, 1993, he was transferred to the NICU II unit at Shands Teaching Hospital in Gainesville, Florida. Upon admission to Shands, Nathan evidenced a seizure and was placed on phenobarbital, later changed to Tegretol, to control his seizures. An EEG revealed seizures activity suggestive of diffuse cerebral dysfunction, and a CT scan revealed a bilateral subarachnoid hemorrhage, with fracture of the parietal bone. Nathan was initially hypertonic with poor suck, but showed gradual improvement until by September 28, 1993, he was able to take full feedings and was weaned off oxygen. On September 29, 1993, Nathan was discharged to the care of his parents, with maintenance Tegretol for seizure control. On November 24, 1993, Nathan was evaluated at the Pediatric Neurology Clinic. At the time, it was reported that Nathan continued on Tegretol and had not experienced any further seizures since those experienced immediately after his admission to Shands on September 24, 1993. A follow-up MRI was performed which showed resolving hemorrhage and no evidence of an ongoing fracture. On examination, Nathan evidenced good developmental milestones. The exam further revealed: . . . In terms of developmental milestones, Nathan has good head control for age. He has turned over one time. He recognizes mom's voice and smiles. On exam he has a height of 58.5 cm., weight of 5.48 kg., head circumference of 39.5 cm., temperature 37.2, pulse 164, respiratory rate of 28. On HEENT the patient's anterior fontanel is soft, flat, bilateral breath sounds are clear to auscultation. Heart rate is regular, no murmurs auscultated. Abdominal exam is benign for hepatosplenomegaly. No birth marks are detected. Specifically on neurologic the patient is awake, alert, easily rooting well. Cranial nerve exam reveals PERRLA, positive red reflex on funduscopic exam, tracking well. In terms of facial movement, there seems to be an asymmetry with a weekness on the left. It was difficult to assess forehead involvement as the baby neither cried nor smiled throughout the exam. It appears to effect [sic] his lower face as well as his left eyelid and mom adds that when he sleeps his left eye does not close spontaneously at times. Motor exam reveals normal tone. Reflexes were easy to elicit and approximately 5-10 beats of clonus was noted bilaterally with upgoing toes. Sensory is grossly intact. Cerebellar is appro- priate for age. As a consequence, it was concluded to continue Nathan on Tegretol, without further increase in dosage, and gradually wean him off the medicine as he gained weight, with the aim of discontinuing Tegretol by six months of age. On January 20, 1995, Nathan was evaluated by Michael Duchowny, M.D., at Miami Children's Hospital, in Miami, Dade County, Florida. Dr. Duchowny is board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. On examination, Dr. Duchowny found and reported the following observations: GROWTH AND DEVELOPMENT: Nathan rolled over at 5 months, sat at 7 months and stood at 9 months, he walked at a year and is not yet toilet trained. PHYSICAL EXAMINATION: Reveals Nathan to be an alert, pleasant and cooperative infant. His weight is 24 lbs and height a 34 inches, his skin is warm and moist and no neurocutaneous stigmata, the head circumference measures 48.1 cm. which is in standard percentiles, neck is supple with out masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no digital, skeletal or palmar abnormalities. Nathan's NEUROLOGICAL EXAMINATION: Reveals him to be alert and cooperative, he maintains an age appropriate stream of attention and cooperative fully with the examination. He has a good level of curiosity. Nathan did not speak but babble quite melodically throughout the interview. Nathan maintain a good central gaze fixation and congenically follows quite well. There is blink to threat in both directions, the funduscopic examination are unremarkable the pubils [sic] are 4 ml and react briskly to direct and consensually presented light. There are no nasolabial asymmetries and the tongue and palate move well, the gag reflex is appropriate active. Motor examination reveals generalized diminution in muscle tone. Motor examination reveals generalized diminution in muscle tone. This is present in a symmetric fashion in all extremities and there is increase range of motion at all joints. I detected no evidence . . . of spasticity or hypotonia and Nathan additionally demonstrate full use of all limbs. He grasp for offered objects with either hand and transferred readily. There is good fine motor movement and thumb finger opposition bilaterally. The deep tendon reflexes were slightly brisk being 2-3+ with both plantar responses being down ongoing. Station and gait revealed the stability in normal stands but a slight truncal ataxia while walking, however, Nathan turn crisply and did not fall. Sensory examination was deferred. Neurovascular examination reveal cervical cranial and ocular bruit and no temperature or pulse asymmetries. In SUMMARY, Nathan neurological examination in detail reveals only mild delays in motor and speech function. I regard the lateralized motor syndrome to be fully resolved. The foregoing findings of Dr. Duchowny are consistent with the other evidence of record which reveals that the consequences of the injury Nathan suffered at birth have, over time, continued to improve. Consequently, the opinion of Dr. Duchowny that Nathan does not suffer a permanent and substantial physical impairment or a permanent and substantial mental impairment is credited.
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
