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.
The Issue The issue in this case is whether Jeffrey Puretz, M.D., was a participating physician at the time of the birth of Sophia Talley for purposes of the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated Facts Petitioners Jaime Barnes and Jonathan Talley are the parents/natural guardians of Sophia Talley. The delivery of Sophia was performed by Intervenor, Jeffrey Puretz, M.D. Sophia was born at Lakeland Regional Medical Center (LRMC), a licensed hospital in Lakeland, Florida, on June 14, 2011. Sophia’s birth weight was 2,970 grams. Sophia was a single gestation. Sophia did not suffer from a genetic or congenital abnormality at birth. Sophia’s APGAR scores at birth were 4/8/9. Sophia was delivered by Cesarean section. Sophia is substantially and permanently mentally and physically impaired as a result of an hypoxic injury to her brain which occurred during labor, delivery and in the immediate post- delivery period. Sophia’s medical condition and treatment are documented in the birth records of Lakeland Regional Medical Center. The Petition in this cause was filed within five years from the date of birth of Sophia. Jeffrey Puretz, M.D., provided NICA notice to Jaime Barnes. Jeffrey Puretz, M.D., paid the NICA fee covering the period during which the birth of Sophia took place. NICA issued a certificate of participation regarding Jeffrey Puretz, M.D., for the period of time which included the date of birth of Sophia. At the time of Sophia’s birth, Jeffrey Puretz, M.D., was providing services pursuant to a contract with Central Florida Healthcare, Inc. (CFH). Facts based upon evidence of record At the time he delivered Sophia Talley, Dr. Puretz was employed by Women’s Care of Florida Lakeland OB/GYN. However, Dr. Puretz also provided obstetrical services pursuant to an independent contractor agreement with CFH. Ms. Barnes received her prenatal care from CFH. Dr. Puretz provided services to Ms. Barnes as a result of Ms. Barnes’ status as a patient of CFH, a federally-funded community healthcare provider. The independent contractor agreement between Dr. Puretz and CFH states that Dr. Puretz has been "deemed" an employee of the federal government pursuant to the Federally Supported Health Centers Assistance Act and reads in pertinent part as follows: The practice represents and warrants to the Contractor that it has been “deemed” and that during the term of this Agreement it shall remain “deemed” as an employee of the Federal Government pursuant to the Federally Supported Health Centers Assistance Act of 1995 (Pub. L. 104-73). As such, all of the Practice’s employees and certain independent contractors, as well as the Practice itself, are afforded protection under the Federal Tort Claims Act (FTCA) for claims relating to personal injury, including death, resulting from the performance of medical procedures required under this Agreement. The Contractor, by virtue of his/her independent contractor status in the field of obstetrics and gynecology, will be afforded protection under the FTCA for duties performed under this Agreement. The NICA Notice provided to Ms. Barnes by CFH includes the name of Dr. Puretz as one of the physicians who could be providing obstetrical care to Ms. Barnes. In addition to having a “Certificate of Participation” from NICA, Dr. Puretz appears on NICA’s list of participating physicians, which listed Dr. Puretz as a participating physician for the time period in which Sophia was born. Carol Fox is Associate Vice President of Medical and Academic affairs at LRMC. Her responsibilities include oversight of the medical staff office, which does the credentialing, privileging, and enrollment of medical staff members of the hospital. According to Ms. Fox, a physician must provide evidence of licensure and malpractice insurance to apply for medical staff privileges. The office is also responsible for confirming that physicians with privileges are participants in NICA. Dr. Puretz is an active staff member providing obstetrical services at LRMC. A copy of Dr. Puretz’s memorandum of insurance for medical professional liability insurance is kept on file at LRMC, listing his private practice, Women’s Care Florida, LLC, as the named insured. According to Ms. Fox, LRMC does not consider or rely upon a physician’s employment status when considering the granting of privileges. The Agreement between Dr. Puretz and CFH specifically contemplates that the services provided by Dr. Puretz include both hospital and outpatient services. It is Dr. Puretz’s understanding that he was acting as a federal employee under the contract with CFH when he was providing obstetrical services for the birth of Sophia.
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.
Findings Of Fact On May 9, 2020, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, otherwise known as the Plan. The baby was born on November 16, 2019, at Shands Lake Shore Regional Medical Center (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records provided by NICA in response to the Petition. In the instant case, NICA has retained Donald C. Willis, M.D., as its medical expert specializing in maternal-fetal medicine. Dr. Willis’s medical report was attached to the Motion as Exhibit 1. Upon examination of the pertinent medical records, Dr. Willis opined: Based on available medical records, there was an apparent obstetrical event that may have resulted in some possible degree of oxygen deprivation during the birth process. However, any oxygen deprivation that may have occurred did not result in identifiable brain injury. It is likely the subdural and subgaleal hematomas resulted from failed vacuum application and not related to brain injury. Additionally, NICA retained Raj Sheth, M.D., as its medical expert specializing in Pediatric Neurology. Dr. Sheth’s medical report was attached to the Motion as Exhibit 2. Upon examination of the pertinent medical records and performance of an independent medical examination, Dr. Sheth opined: Willows’ neurological examination reveals mild gross motor delays for expected age. There was no evidence of generalized hypotonia or hypertonia. The remainder of her neurological examination was normal for age. She was thought to have moderate HIE in the immediate neonatal course. Her head circumference is growing appropriately. PT and OT evaluation expected good prognosis. Currently, Willow is making constant ongoing progress, although the family notes this is slower than for her 4-year-old brother. The neurologic examination and developmental examination indicate that she has mild developmental delays and subtle hand preferences where she uses both hands but tends to prefer her right hand more than the left. At this point she does not demonstrate significant mental or physical impairments. Her EEG post cooling was normal. Her head ultra-sound was normal. Her head MRI was normal and showed no evidence of IE or hemorrhage. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. The Petition, along with the unrebutted medical reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine issues of material fact regarding the compensability of this claim.
