Findings Of Fact D’Taveus Drummond was born on September 3, 2010, at Heart of Florida Regional Medical Center located in Davenport, Florida. D’Taveus weighed more than 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for D’Taveus to determine whether an injury occurred 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 medical report dated May 12, 2015, Dr. Willis described his findings in part as follows: Spontaneous vaginal delivery was complicated by a shoulder dystocia. Birth weight was 3,766 grams or 8 lbs 5 oz’s. The baby was depressed at birth, but responded quickly to resuscitation. There was no respiratory effort at birth. Apgar score at one minute was 5. Bag and mask ventilation was given for one minute and an injection of narcan was given to reverse the respiratory depression effects of narcotics given during labor. The baby responded to resuscitation efforts and the Apgar score was 8 by five minutes. The baby did not move the right arm after birth. Erb’s palsy was diagnosed. Otherwise, the newborn hospital course was uncomplicated and the baby was discharged home with the mother two days after birth. MRI of the spine at 4 months of age identified a traumatic neuroma of the right, but no abnormalities of the cervical spine. MRI of the brain was normal. Nerve graph was done at about 6 months of age. Neurology evaluation at that time stated the child was developmentally on target at 6 months of age. In summary, delivery was complicated by a shoulder dystocia and resulting brachial plexus injury. The baby did not have problems related to birth hypoxia. Newborn course was complicated only by the brachial plexus injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated December 11, 2015. NICA retained Laufey Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine D’Taveus and to review his medical records. Dr. Sigurdardottir examined D’Taveus on November 4, 2015. In an affidavit dated February 19, 2016, Dr. Sigurdardottir opined as follows: Summary: Here we have a 5-year 1-month old boy with known shoulder dystocia leading to right bracial plexopathy which occurred at birth. He has required multiple procedures to address his traumatic neuromas as well as increase his functional ability but yet has significant disability in the functional abilities of his right upper extremity. There is no history given or relayed to us regarding his mental abilities, but on observation during his visit, he is noted to be verbal and have no clear major mental impairment. Result as to question 1: The patient is found to have mild or no mental impairment. * * * In light of the above-mentioned details including his normal or near normal mental capacity and limited motor disability to his upper extremity, I do not recommend D’Taveus to be included into the Neurologic Injury Compensation Association (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 or spinal cord 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. Sigurdardottir’s opinion that D’Taveus has mild or no mental impairment with normal to near normal mental capacity. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Jaxon Donald suffered a “birth-related neurological injury” as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”).
Findings Of Fact Linette Donald and Jeffrey L. Donald, Jr., are the parents and legal guardians of Jaxon. On September 30, 2017, Ms. Donald gave birth to Jaxon, a single gestation of 38 weeks, at Winnie Palmer Hospital a/k/a Orlando Health, Inc. (“Hospital”). Natalie Munoz-Sievert, M.D., provided obstetrical services and delivered Jaxon. It is undisputed that Dr. Munoz-Sievert was a participating physician in the Plan at the time of the delivery. Jaxon’s delivery, a spontaneous vaginal birth at 38 weeks gestational labor, was not complicated. Jaxon weighed 3,288 grams, was vigorous, and needed no resuscitation. His APGAR scores, which are used to determine if a baby needs resuscitation and if there is a risk of oxygen deprivation, were normal—eight at one minute and nine at five minutes. Scores above seven are considered normal. Jaxon needed no resuscitation after birth. Upon being transferred to the newborn nursery, Jaxon was clinically stable with no particular problems. The Hospital discharged Jaxon home in good condition with an uneventful newborn course at the Hospital. In support of their claim, Petitioners presented the testimony of Ms. Donald and two of her sisters. Petitioners also introduced medical records, including letters from two of Jaxon’s treating physicians. Ms. Donald testified about the labor, delivery, and Jaxon’s medical conditions. Although her prenatal records showed no particular signs of problems during her pregnancy, she explained why she believed Jaxon may have suffered a compensable birth-related neurological injury. Ms. Donald went into labor the evening of September 29, 2017. She went to the Hospital the next morning around 5:00 a.m. She waited in the lobby and an adjacent restroom for almost seven hours because there were no rooms available. During that period of time, she was not hooked up to a fetal monitor. Around 11:58 p.m., the Hospital admitted her and hooked her up to a fetal monitor, which indicated no fetal distress or abnormality. Ms. Donald felt the need to push immediately and, according to her, the nurse held the baby in until the doctor arrived. Ms. Donald delivered Jaxon at 12:42 p.m. Ms. Donald testified that Jaxon was blue after the delivery and that the Hospital placed him under a warmer. She said that the records indicated nasal flaring, which she believed showed respiratory distress. She testified that Jaxon was lethargic, sleepy, and had trouble feeding. Although she did not believe Jaxon was acting normal, the Hospital staff reassured her that he was fine. About 10 days after the delivery, she had to bring Jaxon back to the Hospital because he was not eating. Ultimately, Jaxon had a feeding tube inserted in August 2019. Ms. Donald testified that Jaxon is currently behind developmentally, both physically and emotionally. At about 18 months old, Jaxon underwent an MRI that showed he suffered a hypoxic ischemic event or low oxygen event that affected his brain. She believes the event could have occurred while she labored in the emergency room prior to being admitted and that the Hospital missed it due to a lack of fetal monitoring during that time. Jaxon is in occupational and speech therapy, as he currently only says five words. He also does not regulate his emotions like a normal child. Ms. Donald’s sisters, Ms. Perez and Ms. Rosado, also testified. Both were present at the Hospital and have spent time with Jaxon since his birth. They testified that Jaxon was lethargic at the Hospital, did not move much, and acted abnormally. Ms. Perez noted that Jaxon felt limp when she held him. Both stated that Jaxon is not where he should be developmentally. He has temper tantrums that last hours, cannot differentiate between yes and no, and says few words that only the family can understand. Neither sister believes Jaxon is where he should be developmentally at three years old. Samer Khaznadar, M.D., Jaxon’s pediatrician, prepared a letter indicating that, based on the medical records, Jaxon qualified for NICA benefits because he was diagnosed with Erb’s Paralysis due to a birth injury, has used a feeding tube, was diagnosed with mild cerebral palsy, wears an AFO,2 and is delayed. Dr. Khaznadar did not testify at the hearing, however, so he never expounded upon the medical bases for his statements, whether an oxygen deprivation event may have occurred during labor, delivery, or the 2 The record is silent as to the definition of an AFO. However, it appears to be an “ankle-foot orthosis” or brace “used to control instabilities in the lower limb by maintaining proper alignment and controlling motion. It is most often used with patients suffering from neurological or orthopedic conditions such as stroke, multiple sclerosis, cerebral palsy, fractures, sprains and arthritis.” Scheck & Siress, Plastic Ankle Foot Orthosis (AFO), available at https://www.scheckandsiress.com/patient-information/care-and-use-of-your- device/plastic-afo-ankle-foot-orthosis/ (last visited Sep. 4, 2020). immediate period thereafter, or whether Jaxon’s injuries constitute permanent and substantial mental and physical impairment. Murtuza Kothawala, M.D., Jaxon’s neurologist, also prepared a letter. He initially evaluated Jaxon for left upper extremity weakness in May 2018. When Jaxon was 18 months old in March 2020, he underwent an MRI that showed significant abnormality in his brain. Jaxon was diagnosed with left hemiplegic cerebral palsy, decreased muscle tone, and developmental delay, which are suggestive of a hypoxic low oxygen ischemic injury that might have happened around the perinatal period. However, Dr. Kothawala noted that determining the exact timing of the injury was impossible based only on the MRI report. He also confirmed that the Hospital’s medical records indicated a normal delivery with normal APGAR scores. Dr. Kothawala noted that Jaxon’s diagnoses impact him physically and interfere with his intellectual stamina as well as his ability to stay on task. He confirmed that accommodations would be needed so Jaxon could succeed academically. However, Dr. Kothawala did not opine that Jaxon suffers from permanent and substantial mental and physical impairment. He also did not testify at the hearing so as to explain the issues concerning the timing of the event that caused Jaxon’s injuries or whether they constitute permanent and substantial mental and physical impairment. NICA presented the testimony of two medical experts—Dr. Willis, a board-certified obstetrician, and Dr. Luis-Espinosa, a children’s neurologist who conducted an independent medical examination (“IME”) of Jaxon. After reviewing all of the medical records, Dr. Willis opined to a reasonable degree of medical certainty that Jaxon did not suffer an injury to the spinal cord or brain caused by oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis explained that the medical records indicated a normal, uncomplicated delivery and an uneventful newborn course at the Hospital. Jaxon’s fetal heart rate tracings were normal before and during the delivery, there was no indication of fetal distress during labor and delivery, his APGAR scores were normal, and he needed no resuscitation. Dr. Willis acknowledged that the medical records showed that Jaxon had problems with decreased muscle strength in the left arm and that the MRI showed findings that could be related to an oxygen deprivation event and brain injury. He also recognized that the medical records indicated Jaxon suffered from Erb’s Palsy, i.e., an injury to the brachial plexus that commonly occurs when a baby’s neck is stretched during a difficult delivery, but stated both that such an injury is not an injury to the brain or spinal cord itself and that the medical records confirmed an uncomplicated delivery. On cross examination, Petitioners asked whether the records could have missed an oxygen deprivation event while Ms. Donald was not hooked up to a fetal monitor before admission to the Hospital. Dr. Willis did not think so. He explained that, had such an oxygen deprivation event occurred that was sufficient to cause brain or spinal cord injury, the fetal distress would have been evident once the monitor was hooked up. Further, Jaxon’s other organ systems would likely have failed within a day or two of the delivery had such an event occurred, including seizures, respiratory distress requiring use of a ventilator, or renal failure. But, none of that occurred. Petitioners also asked whether Jaxon’s symptoms at birth—i.e., appearing blue and pale, nasal flaring, sleepiness, being floppy or low muscle tone, and difficulty feeding—were signs of an oxygen deprivation event. Dr. Willis explained that being blue and pale at one minute is normal. However, he acknowledged that some of the other symptoms could be evidence of a minor degree of brain injury due to a lesser degree of oxygen deprivation. In that scenario, the baby would not have all of the multi-organ failures he previously described. Dr. Willis testified, however, that such an event, even if it happened, would be outside the realm of NICA because the injury is not significant enough. Dr. Luis-Espinosa conducted an IME on Jaxon in December 2019. Based on his review of the medical records, the MRI report, and the IME, Dr. Luis-Espinosa opined to a reasonable degree of medical certainty that Jaxon most likely suffered a stroke in utero during the second or third trimester. Dr. Luis-Espinosa confirmed that the stroke caused Jaxon to suffer from cerebral palsy or spastic weakness in his left leg and arm. Dr. Luis- Espinosa did not believe that the stroke occurred during labor, delivery, or the immediate period thereafter because there were no clinical signs of stress during the delivery and Jaxon’s evolution post-birth was consistent with a normal, event-free birth. Dr. Luis-Espinosa confirmed that the cerebral palsy from which Jaxon suffers constitutes a permanent and substantial physical impairment. However, Dr. Luis-Espinosa does not believe that the impairment was caused by oxygen deprivation or a mechanical injury to the brain or spinal cord. Dr. Luis-Espinosa also opined to a reasonable degree of medical certainty that Jaxon does not suffer from a permanent and substantial mental impairment. During the IME, Dr. Luis-Espinosa found Jaxon to be cognitively behaving appropriately for his age. On cross examination, Petitioners asked whether Jaxon could have suffered from oxygen deprivation based on his appearing blue at birth and nasal flaring. Dr. Luis-Espinosa testified that Jaxon would have suffered from multi-organ failures had an oxygen deprivation event occurred. And, because oxygen deprivation affects both sides of the brain, Dr. Luis-Espinosa explained that such an event would not typically cause an injury to only one side of the body, such as Jaxon’s left-sided weakness. Dr. Luis-Espinosa acknowledged that his opinion as to mental impairment was only based on Jaxon’s state at the time of the IME. Based on the weight of the credible evidence, the evidence did not establish that Jaxon more likely than not suffered an injury to his brain or spinal cord due to oxygen deprivation or a mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period, which rendered him permanently and substantially physically and mentally impaired. The medical records indicated an uncomplicated delivery, normal APGAR scores, and no need for resuscitation. Dr. Willis and Dr. Luis- Espinosa opined to a reasonable degree of medical certainty that Jaxon did not suffer an oxygen deprivation event or one that occurred during labor, delivery, or the immediate period thereafter, but instead most likely suffered from a stroke in utero earlier in the pregnancy. They both offered specific, credible reasons to support those opinions. The letters from Jaxon’s treating physicians and Dr. Willis’s testimony on cross examination at best showed that a minor oxygen deprivation event could have occurred during the pre- admission period in the Hospital. However, that is insufficient to prove that such an event more likely than not occurred, particularly given the credible and unrebutted testimony of NICA’s two medical experts. Although it is undisputed that Jaxon suffers from a permanent and substantial physical impairment, the weight of the credible evidence did not establish that he suffers from a permanent and substantial mental impairment or that any impairment was caused by oxygen deprivation or a mechanical injury occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Petitioners’ witnesses offered credible testimony that Jaxon appears to be delayed mentally, does not speak enough for a child who is almost three years old, and does not act accordingly for his age. However, that lay testimony is insufficient to rebut the credible and unrebutted testimony of Dr. Luis-Espinosa that Jaxon showed no signs of mental impairment during the IME and that his physical impairment did not appear to be caused by an oxygen deprivation event.
The Issue At issue in the proceeding is whether Taylor Michelle Kielb, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Trisha Kielb nee Trisha Peck and David Kielb, are the parents and natural guardians of Taylor Michelle Kielb, a minor. Taylor was born a live infant on June 7, 1997, at Memorial Hospital West, a hospital located in Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Taylor was Nigel Spier, 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(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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 renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. Here, the proof demonstrates, more likely than not, that Taylor's neurologic impairment was not associated with any intrapartum injury, hypoxic or traumatic in nature, but is related to an autonomic nervous system dysfunction (also called dysautonomia and Riley- Day syndrome) of otherwise unclear etiology. Consequently, it is unnecessary to otherwise address the cause or timing of her anomaly, or whether Taylor has been rendered permanently and substantially mentally and physically impaired. The cause of Taylor's neurologic dysfunction In reaching the conclusion that Taylor suffers a dysautonomia unassociated with any intrapartum injury, the medical records relating to Mrs. Kielb's antepartum and intrapartum course, as well as for Taylor's birth and subsequent development have been carefully considered (Petitioners' Exhibit 1). Also considered was the testimony of Jaime L. Baquero, M.D., a pediatric neurologist who was called upon to examine Taylor and render his opinion regarding the etiology of Taylor's neurologic impairment. (Respondent's Exhibit 1). Pertinent to this case, Dr. Baquero examined Taylor on December 1, 2000, and reported the results of that consultation as follows: I had the opportunity to examine Taylor, after reviewing the medical history regarding neurologic difficulties she has been experiencing since the neonatal period. These included provoked, as well as unprovoked episodes of breath-holding which have been difficult to manage, as well as diffuse hypotonia, manifested by poor muscle tone, developmental delay, gastroesophageal reflux and noisy breathing (early stridor) without a clear etiology. She was evaluated by neurology early on, after presenting with episodes of breath holding since the first day of life. An extensive work-up was undertaken at the time, including brain CT (normal), routine EEG was once normal and once with "right posterior temporal sharps." Video-eeg telemetry monitoring studies done later were normal. EKG and cardiac echocardiography, polysomnography and a comprehensive neurometabolic panel. Ph-probe demonstrated reflux and EKG's and Holter monitoring showed bradycardia, sinus arrest and ideoventricular rhythm. MRI at age 3 weeks was interpreted as "No intrinsic brain abnormality. Extra-axial collections vs. subdurals over the right parietal vertex and behind both cerebellar hemispheres." Of interest, is the fact that, while Taylor appears to have relative insensitivity to pain, she seems to have periods of marked sensitivity to stimulation of the skin. In addition, she has had episodes of abdominal distention and transient episodes of skin discoloration. In 1997, Taylor was seen by Dr. Axelrod who is a specialist in Disorders of the autonomic nervous system. PAST MEDICAL HISTORY: Taylor was born to 25 year old via C-section with breech presentation due to fetal intolerance to labor and non-reassuring fetal heart monitoring, with membranes ruptured 3 1/2 hours prior to delivery. The baby required respiratory support for less than two days, following 100% oxygen with bag and mask. Thin, non-particulate meconium stained amniotic fluid was noted. Apgar scores were 4, 6 and 9 [sic] at one, five and ten minutes respectively. Birth weight was 3.1 kg. Initial blood gas revealed a Ph of 7.21, PC02 51, PO2 of 41 (cord) and a base deficit of -7. Narcan and sodium bicarbonate were given. Antibiotic were given until all cultures, including CSF, were negative. CSF PCR for Herpes Virus was negative, as was the neonatal screening for inborn errors of metabolism. Poor feeding and sucking were noted. Episodes of desaturation with both cyanotic and pallid breath-holding spells were seen frequently, and over time remained refractory to medical treatment. Developmental history reveals that at present she walked 26 mos. and alternates feet when going up and down stairs with assistance. She can't ride a tricycle, she can stack more than five blocks, scribbles but cannot copy a circle. She assists in dressing and undressing. She has difficulty with textured foods and eats mainly baby food. She is not toilet trained. Yet. She uses pronouns, waves bye-bye and follows commands. She knows primary colors and has good eye contact. * * * PHYSICAL EXAMINATION: She is alert, in no acute distress with stable vital signs. There were no dysmorphic features or neurocutaneous signs. There is no organomegaly or audible murmurs. There is upper airway congestion. Head circumference measures 50 cm. Cranial nerves are intact. Motor examination reveals generalized hypotonia with symmetric loss of muscle mass. No fasciculations. There is exaggerated lordosis as posture is assessed. We could not elicit deep tendon reflexes. No fixed spinal deformity is seen. There are no involuntary movements or nystagmus. There is no clonus, persistence of early developmental reflexes and plantar responses were absent. IMPRESSION: Based on a careful review of history and clinical examination and given the lack of cerebral edema on a brain CT obtained within 72 hours, absence of significant acidemia on cord blood gas, five minute apgar above 5, along with signs of autonomic dysfunction, arreflexia, apnea, intermittent cardiac dysrhythmia, relative insensitivity to pain despite apparent episodes of marked tactile hypersensitivity, the presence of poor coordination, hypotonia and breech presentation (present in 23% of babies with dysautonomia vs. 3% normal prevalence); We conclude that Taylor's clinical syndrome is not associated with intrapartum injury but rather associated to autonomic nervous system dysfunction of unclear etiology. Dr. Baquero's opinion is grossly consistent with the proof and is credited.
The Issue At issue in this proceeding is whether Gordon Quinn Kowlessar, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Carmen L. Diaz and Andrew Kowlessar are the parents and natural guardians of Gordon Quinn Kowlessar (Gordon), a minor. Gordon was born a live infant on August 26, 1997, at Halifax Medical Center, a hospital located in Daytona Beach, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Gordon were Linda Hensley, M.D., assisted by Julia Harris, M.D., and they were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered 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 renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the parties agree that Gordon suffered an injury to his brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period which rendered him permanently and substantially physically impaired. Consequently, the sole issue to resolve is whether such injury likewise resulted in permanent and substantial mental impairment. As to that issue, Petitioners are of the opinion that Gordon's mental development is age appropriate, and Respondent is of the opinion that, at the present time, Gordon's mental status can not be adequately assessed. Gordon's neurologic condition On October 23, 1998, following the filing of the claim for compensation, Gordon was examined by Michael Duchowny, M.D., an expert in pediatric neurology. At the time, Dr. Duchowny was unable to reach an opinion regarding Gordon's mental status for two reasons. First, Gordon was quite young to perform such an assessment. Second, Gordon had a significant motor impairment which made, at his age, the assessment of mental status difficult. Consequently, Dr. Duchowny was unable to offer an opinion as to whether Gordon's brain injury also produced permanent and substantial mental impairment. The infant's mother, Carmen L. Diaz, based on her observations and experience, expressed the opinion that Gordon's mental status or function was normal or, stated differently, age appropriate. Such opinion was premised on Gordon's language development, as well as his reaction/interaction with others and his environment, which in Ms. Diaz's opinion failed to reveal any delay in development of his mental functions. Apart from the observations of Dr. Duchowny and Ms. Diaz, the parties also offered certain medical records pertaining to Gordon's birth and subsequent development (Petitioners' Exhibit 1); however, these records do not provide any meaningful assessment of Gordon's mental status. Indeed, consistent with Dr. Duchowny's observations, they reveal that due to Gordon's motor impairment, a meaningful assessment of his mental status, at the time, was difficult.
The Issue At issue in this proceeding is whether Melissa Sara Spence, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Angela Hill and Richard Spence are the parents and natural guardians of Melissa Sara Spence (Melissa), a minor. Melissa was born a live infant on January 24, 1996, at Memorial Regional Hospital, a hospital located in Hollywood, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Melissa was Isabel Otero, M.D., who was, at all time material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered 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 renders the infant permanently and substantially mentally and physically impaired." Melissa's presentation On April 21, 1998, following the filing of the claim for compensation, Melissa was examined by Michael Duchowny, M.D., a physician board-certified in pediatrics and neurology, with special competence in child neurology. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MR. AND MRS. SPENCE: The parents began by stating that Melissa's main problem is that she "communicates well, but her sentence structure is not real good." She apparently knows words and can speak in full sentences, but often tends to communicate her thoughts by gesture. She has not been in a course of speech therapy. Her parents believe that her hearing and vision are normal, although they have not been formally tested. There is no indication that Melissa has loss (sic) any language ability and in fact she began speaking at a year, the same time that she walked independently. Mr. and Mrs. Spence believe that Melissa's motor development has gone well. All of her motor milestones were essentially accomplished on time. She is described as an active and well-coordinated toddler. * * * PHYSICAL EXAMINATION reveals Melissa to be alert, pleasant and cooperative. Her weight is 32-pounds and height 37-inches. The skin is warm and moist. There is one cafe-au-lait spot on the right leg. There are no dysmorphic features and no other neurocutaneous stigmata. The head circumference measures 51.7 cm and the fontanelles are closed. The right ventriculoperitoneal tubing is palpated and an abdominal scar is noted. There are no significant cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Melissa's NEUROLOGIC EXAMINATION reveals her to be alert and to have an age appropriate stream of attention. She displays a well-developed level of curiosity, but is fully cooperative and clearly enjoys the social interaction accompanying the evaluation. She spoke in phrases and short sentences. She was able to carry out one and two step commands. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. There are no fundoscopic anomalies. The tongue and palate move well. There is no drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. Melissa has a full range of motion. She has well-developed gross and fine motor coordination. She is able to grasp objects with either hand, but does not display a lateralized preference. Transferring is accomplished readily and she has well- developed thumb/finger opposition. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Station and gait are age appropriate with symmetric arm swing. The neurovascular examination is unremarkable. There are no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The spine is straight. . . . In Dr. Duchowny's opinion, which is uncontroverted and credible, Melissa's neurologic examination revealed only a mild delay in expressive language, most likely developmentally based, which is most likely to fully remit over time. As for her physical presentation, Melissa's neurologic examination was entirely normal, without any evidence of physical or motor impairment. Moreover, it was Dr. Duchowny's opinion, which was shared by Charles Kalstone, M.D., a board-certified obstetrician, that the records relating to Melissa's birth do not reveal any untoward events during the course of labor, delivery, or the immediate post-delivery period which would have caused or contributed to neurological injury. In sum, the proof fails to demonstrate that Melissa suffered any injury to her brain or spinal cord during the birth process, much less a permanent and substantial, mental and physical impairment.
Findings Of Fact Dream was born on February 14, 2018, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Dream. In a medical report dated October 8, 2019, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at about 33 weeks for preclampsia. FHR tracing during labor did not suggest any significant fetal distress. Delivery was by Cesarean section. Umbilical cord blood gas pH was within normal limits at 7.12. There was no seizure activity noted after delivery. No EEG or head imaging studies were done during the newborn hospital course. The child suffered brain injury at some time prior to the MRI at 11 months of age, which was consistent with encephalmalacia. However, the brain injury does not appear to be birth related. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, deliver or the immediate post-delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Dream and to review his medical records. Dr. Duchowny examined Dream on November 26, 2019. In a medical report dated November 27, 2019, Dr. Duchowny summarized his examination of Dream and opined, in pertinent part, as follows: In summary, Dream’s evaluation reveals findings consistent with a substantial mental and motor impairment. The evidences spasticity and hyperreflexia of all extremities, a profound delay in motor milestones and absence of meaningful communication. He also has oromotor dysfunction and a borderline right exotropia. Review of medical records forwarded on November 12, 2019 reveal that Dream was the 2900 gram product of a 34 week gestation complicated by insulin-dependent gestational diabetes, polyhydramnios, pregnancy-induced hypertension and pre-eclampsia. He was delivered by Caesarian section because of worsening pre- eclampsia and non-reassuring fetal heart tones. Dream was a large-for-gestational-age neonate and had Apgar scores of 6 and 7 at one and five minutes. His neonatal course was prolonged although he remained on CPAP for only one day. A brain MR imaging performed on January 14, 2019 (age one month) revealed bilateral multifocal cystic periventricular leukomalacia. Given Dream’s relatively stable intrapartum and postnatal care, I would like to review Dream’s brain imaging before making a final recommendation regarding acceptance to the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his neurological evaluation of Dream, following the review of brain imaging studies. Dr. Duchowny and Dr. Willis conferred regarding Dream’s medical records and current neurological status as well. In his February 14, 2020, addendum, Dr. Duchowny opined: It is our combined opinion that the findings on re- review do not support the presumption that Dream’s severe neurological outcome and MR imaging abnormalities were acquired in the course of labor, delivery or the immediate post-natal period as a result of either oxygen deprivation or mechanical injury. 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 to Dream’s brain during labor, delivery, and the post-delivery period, which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dream should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinion in an affidavit dated April 17, 2020. Dr. Duchowny reaffirmed his opinion in an affidavit dated April 17, 2020.
The Issue At issue in the proceeding is whether Ava Katherine Nagy, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Thomas Nagy and Dawn Nagy are the parents and natural guardians of Ava Katherine Nagy, a deceased minor. Ava was born a live infant on November 20, 1998, at South Broward Hospital District, d/b/a Memorial Regional Hospital, a hospital located in Broward County, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Ava was Susan Davila, 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(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan, when the proof demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . 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 renders the infant permanently and substantially mentally and physically impaired."1 Here, NICA and the Intervenors are of the view that Ava suffered a "birth- related neurological injury," as defined by the Plan, and request that the claim be accepted as compensable. Petitioners, however, are of the view that Ava did not suffer a "birth-related neurological injury" and request that the claim be rejected so they may pursue their civil remedies. Ava's birth and subsequent development Mrs. Nagy presented at Memorial Regional Hospital at approximately 6:00 a.m., November 20, 1998, for induction of labor. Apart from being slightly post-date (with an EDC of November 16, 1998), Mrs. Nagy's prenatal course had been uncomplicated, and on admission fetal heart rate was noted within normal limits (at 140-150 beats per minute) and positive fetal movements were reported. Mrs. Nagy's labor progress was slow, but steady, and external fetal monitoring reflected a normal fetal heart rate throughout the course of labor. At about 5:30 p.m., Mrs. Nagy began to push and at 8:00 p.m., with arrest of descent noted, Dr. Davila attempted a vacuum assisted delivery. According to the records, two pulls were made without success, and Mrs. Nagy was transferred to the operating room for delivery by cesarean section. Ava was delivered by cesarean section at 8:43 p.m. On delivery, Ava was noted to be pale, with poor perfusion, and her heart sounds were noted as distant. Ava was warmed, dried, and stimulated; suctioned by catheter; and offered free-flowing oxygen by mask. Apgar scores were noted as 6 at one minute and 7 at five minutes. The Apgar scores assigned to Ava are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, Ava's Apgar score totaled 6, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at 1 each. At five minutes, Ava's Apgar score totaled 7, with heart rate and respiratory effort being graded at 2 each, and muscle tone, reflex irritability, and color being graded at 1 each. Ava was transferred to the neonatal intensive care unit (NICU), where she was admitted at 8:52 p.m., and placed in a preheated isolate. Assessment on admission evidenced a temperature of 975, pulse of 140, respiratory rate of 64, and blood pressure of 43/23/33. Abnormalities noted included a bruised scalp; boggy occipital area, with possible cephalohematoma ("a subperiosteal hemorrhage limited to the surface of one cranial bone, a usually benign condition seen frequently in the newborn as a result of bone trauma");2 pink, cyanotic skin color, as well as pale mouth and lips; and distant heart sounds. Preliminary diagnosis was hypovolemia ("abnormally decreased volume of circulating fluid (plasma) in the body").3 "UVC were placed by Dr. [Mesfin] Afework, the [neonatalogist], . . . admission labs obtained, [and] x-ray called." Over the next half-hour, Ava's blood pressure dropped and she was started on saline bolus and sodium bicarbonate. When she failed to improve, Ava was started on albumin and dopamine drip. Notwithstanding, at 10:45 p.m., Ava was in respiratory failure, and she was intubated and placed on a respiratory. Dr. Afework's physical examination at approximately 10:30 p.m., noted a temperature of 925, pulse rate of 110, respiratory rate of 64, and blood pressure of 43/23/33. Abnormalities noted were a pale infant, with poor perfusion; a boggy occipital area, with suspected bleed; distant heart sounds; and poor peripheral pulses. Neurological assessment revealed a limp infant, with reduced movement. Dr. Afework's diagnosis included hypotension/shock, hypovolemia, and subgaleal bleed (bleeding between the skull and the scalp). His plan of treatment included volume expansion, correction of her acidotic state, and transfusion with packed red blood cells. Subsequent laboratory results revealed a low hematocrit, consistent with internal bleeding. Ava was not responsive to volume replacement, sodium bicarbonate for acidosis, or dopamine to maintain her blood pressure; she continued to deteriorate and bleed internally; and by 3:00 a.m., November 21, 1998, she was in cardiogenic shock. At the time, Dr. Afework noted a diagnosis of "persistent acidosis/cardiogenic shock" and that trial of ECMO (Extracorporeal Membrane Oxygenation) was the only chance, albeit a slim chance, she had for survival. Ava was placed on ECMO at approximately 4:50 a.m. Unfortunately, due to an anticoagulant used to prevent clotting during the procedure, she began to bleed from her mouth, and bleeding increased under her scalp and into her neck. Due to the active bleeding and persistent acidosis dispute sodium bicarbonate drip, discontinuation of ECMO was recommended. Moreover, due to Ava's poor chance of recovery, her physician also recommended that conventional therapy (such as mechanical ventilation) not be resumed. When the parents were informed that Ava had not responded to ECMO treatment, and that she had a terminal condition ("caused by injury, disease, or illness from which, to a reasonable degree of medical certainty, there is no reasonable probability of recovery and which may be expected to cause death") they consented to withdrawing and withholding life prolonging procedures. Parental consents were signed at 10:05 a.m., ECMO was clamped at 10:07 a.m., and Ava was pronounced dead at 10:45 a.m., November 21, 1998.4 The cause and timing of the injury which led to Ava's neurologic insult and death Here, it is not subject to serious debate that, at delivery, Ava received an injury, a subgaleal hemorrhage, caused by the traumatic application of the vacuum extractor and that the hemorrhage continued, and became more critical, resulting in the pathophysiology of events (including hypovolemia, hypoprofusion, hypotension, and the clinical appearance of cardiogenic shock) which followed. Dr. Robert F. Cullen, Jr., a pediatric neurologist, whose opinions were offered on behalf of Petitioners, described the pathophysiology of events which ensued, including brain injury, as follows: Q. So it was the initial trauma which caused the bleeding, which then caused the other sequela . . . [as well as] oxygen deprivation to the brain, correct? A. It was trauma to the skull that produced anemia . . . [a consequence of hypovolema], hypotension, hypoprofusion, ischemia, cardiogenic shock, ultimately deprivation of oxygen to the brain and death. That's the sequence of events that continues to occur over the 14 hours after the child's birth. * * * Q. The metabolic acidosis in this case . . . would be evidence of an injury to the brain, correct, sir? * * * A. I think that the acidosis and the progressively developing base excess would be indicative of brain injury and systemic injury to multiple tissues. Q. Including the brain, sir? A. Including the brain but that was progressive throughout the rest of the night and the following morning. Q. You can't tell at what time that occurred, can you, sir? A. I can tell you at midnight it [pH] was 6.83 so by that time there was certainly injury. * * * [Q.] Do you have an opinion as to whether this baby at any time suffered brain damage and, if so, when? * * * A. I think that this baby was suffering brain damage during this 14-hour spectrum. I think it became more apparent after a few hours when the baby's blood pressure -- and we're in a picture of cardiogenic shock, but I can't give you the minute at which it occurred, no. It's a sequence of events that continue to compound themselves. Q. So when I asked you when, that's generally the best you can do with the information that you have? You can't actually pinpoint it? A. I can't give you a time, no. Q. It was an ongoing process in your opinion. A. It was an ongoing process that became progressively worse, yes. * * * [With regard to the significance of Ava's neurologic insult], this child did not have permanent and substantial mental impairment within the hour of delivery, and that permanent and substantial mental and physical impairment developed over the ensuing hours as a result of the hemorrhage in the subgaleal space and the other pathophysiological events that occurred. Q. You agree that there was permanent physical and mental impairment but it wasn't within the first hour post-delivery; is that what your testimony is? * * * A. I've said yes because the baby died as a result of this injury so that's as permanent as you can get. What I'm saying is that there's an ongoing sequence of events that produces a point of no return. That is not within the first hour, even though there may be some cellular injury occurring at that time, and it really doesn't become manifest for a number of hours. Can I give you a fixed time during that 14 hours? No. Dr. Michael Duchowny, also a pediatric neurologist, whose opinions were offered on behalf of NICA, agreed with Dr. Cullen's observations as to the cause, timing, and nature of Ava's injury, as well as the pathophysiology of the events that ensued. As Dr. Duchowny observed: . . . this baby's demise was a direct result of a sequence that began intrapartum and that was related to the vacuum extraction. Specifically that was related to [a subgaleal] hemorrhage and then the subsequent complications of hemorrhage [hypovolemia, hypotension, and hypoprofusion] which led to brain damage [most likely hypoxic or ischemic in nature], systemic collapse, and death. Dr. Cullen's and Dr. Duchowny's opinions concerning the cause, timing, and nature of Ava's injury, as well as their opinions regarding the nature of the rapidly progressive catastrophe that ensued, are grossly consistent with the record, are founded on a logical premise, and are accepted as credible and persuasive. Given the record, it may be resolved that Ava received a mechanical injury (a subgaleal hemorrhage, resulting from the traumatic application of the vacuum extractor) during the course of delivery. The record further reveals that the hemorrhage continued unabated, resulting in hypovolemia, hypotension, hypoprofusion, ischemia, cardiogenic shock, deprivation of oxygen to the brain, systemic collapse, and death. Finally, the record reveals that, while the effects of the hemorrhage may not have produced a significant brain injury during labor or resuscitation in the immediate post-delivery period, brain damage was progressive and became evident at least by midnight, if not by 10:30 p.m., and progressively worsened until a point in time (described by Dr. Cullen as "a point of no return"), prior to Ava's death or her removal from life support, when the injury was so profound that the resulting impairment (mental and physical) could reasonably be described as permanent and substantial.
