Findings Of Fact Alexander was born on August 28, 2015, at South Miami Hospital. Alexander was a single gestation, weighing over 2,500 grams at birth. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Alexander and his mother, Petitioner Evelyn Machado Valdes, and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his report, dated February 19, 2018, Dr. Willis set forth the following: In summary, umbilical cord prolapse occurred during labor. Emergency Cesarean section was done with delivery of a healthy newborn. The baby was not depressed at birth. Apgar scores were 9/9. No resuscitation was required. The baby left the delivery room stable and well. Episodes of cyanosis occurred several hours after birth. Cerebral infarction was diagnosed by MRI. The baby suffered a stroke at some time around the episodes of cyanosis that occurred several hours after birth. This would be well after the post-delivery resuscitation period. The baby was born active and required no resuscitation at birth, indicating there was no oxygen deprivation during labor, delivery of [sic] the post- delivery period. * * * 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. The baby did suffer a stroke during the perinatal period, but this was not related to oxygen deprivation or mechanical trauma during labor, delivery or the immediate post-delivery period. Dr. Willis affirms in his amended affidavit, dated September 24, 2018, the above-quoted opinions from his report and further opines that: [I]n that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in this Hospital, then accordingly, there was no causal event which would have rendered Alexander Pinera permanently and substantially mentally and physically impaired as a result of the same. NICA also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the pertinent medical records, conduct an Independent Medical Examination (IME) of Alexander, and opine as to whether Alexander suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Alexander’s mother, Evelyn Machado, and performed an IME on June 13, 2018. In a report authored after the IME, Dr. Duchowny summarized his findings, in pertinent part, as follows: In SUMMARY, Alex’s neurological examination reveals subtle right upper extremity weakness characterized by left hand preference and posturing of his right upper extremity while walking. There is no objective weakness and his fine motor coordination is preserved. His speech is age-appropriate. * * * Although Alex had a major cerebral vascular accident that affected his left cerebral hemisphere, he has made a remarkable recovery and now evidences only minimal deficits on his neurological examination. In view of his stable general physical and neurological status at birth, it is most likely that the cerebral vascular accident occurred prior to the onset of labor. * * * Based on the medical record review and today’s evaluation, I am not recommending Alexander for inclusion in the NICA program. NICA’s Motion for Partial Summary Final Order also relies upon the attached affidavit from Dr. Duchowny, dated September 4, 2018. In his affidavit, he affirms his findings and opinions contained in his report to a reasonable degree of medical probability. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their opinions are credited.
Findings Of Fact Owen Light was born on November 26, 2013, at Florida Hospital Altamonte located in Altamonte Springs, Florida. Owen weighed 3,980 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Owen, to determine whether an injury occurred in a 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 in pertinent part as follows in a medical report dated November 3, 2014: In summary, there was no obvious distress during labor or delivery. The newborn was not depressed. Apgar scores were 9/9. The initial exam in the nursery noted some decreased muscle tone, but no acute distress. The baby was apparently doing well until about 12-hours after birth, when seizure activity was noted. Imaging studies showed venous thrombosis in the dural sinus. 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. The baby suffered brain injury, as indicated by the abnormal EEG and imaging studies of a venous thrombosis in the dural sinus. However, the brain injury does not appear to be related to either mechanical trauma or hypoxic injury during labor, delivery or the immediate post-delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated January 20, 2015, 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. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Owen and to review his medical records. Dr. Sigurdardottir examined Owen on July 22, 2015, and opined in pertinent part as follows in an affidavit dated August 3, 2015: The opinions expressed in my Report are accurate and my opinions are as follows: The patient is found to have a permanent substantial mental and physical impairment and is overall functioning at approximately a 7-9 month level at the biologic age of 19-20 months. He is noted to have hypotonia, delayed gross and fine motor skills, a past history of epilepsy, delayed visual maturation, although no periods of stagnation or developmental regression have been noted. There is little evidence from the records that we have reviewed to suggest a perinatal ischemic or mechanical injury as the cause for his delays. Prenatal care was complete and documentation during the vaginal delivery was continuous revealing only 2 brief periods of mild fetal heart rate deceleration. Upon delivery, there was no indication of an acute ischemic event with normal Apgar scores of 9 after 1 minute and 9 after 5 minutes. There is documentation from a consulting geneticist that mom described possible prenatal seizure- like events, although a clear description was not given. The patient certainly had an abnormal immature EEG and seizure activity that continued for a few weeks. MRI findings have not been consistent with a profound ischemic event, in fact been completely normal. At this time, it is more likely that Owen has delays in his gross and fine motor skills as well as delayed cognitive development due to a congenital disorder that seems non-progressive in nature. He seems to be receiving excellent care provided to him by his parents and caretakers. At this time, it is difficult to measure Owen’s global cognition but based on acquired skills he functions at a 7-8 month level at the age of 19 months. This would be considered a developmental quotient of 40-45. His life expectancy is not felt to be limited if he shows ongoing developmental progress. He is likely to need lifelong care. I therefore am not recommending Owen to be included into 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 expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that although Owen has both a substantial mental and physical impairment, it is more likely that his neurological impairments are due to a congenital disorder and not due to either mechanical injury or oxygen deprivation during labor, delivery or the immediate post-delivery period. Dr. Sigurdardottir’s opinion is credited.
The Issue At issue in this proceeding is whether Joiner Abelove, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters John Abelove and Kathryn Abelove are the parents and natural guardians of Joiner Abelove (Joiner), a minor. Joiner was born a live infant on January 29, 1992, at Cape Canaveral Hospital, a hospital located in Cocoa Beach, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Joiner was Fred Turner, M.D., who was, at all times 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. Mrs. Abelove's antepartum course and Joiner's birth Mrs. Abelove's antepartum course was without apparent complication; however, by late January 1992, the fetus was noted to be large for gestational age and her obstetrician/gynecologist proposed to induce labor. Mrs. Abelove presented to Cape Canaveral Hospital for a Prostin/Pitocin induction of labor at or about 8:30 a.m., January 28, 1992, and was immediately placed on a fetal monitor. Fetal heart rate (FHR) was reassuring, with a baseline of 148 to 154 beats per minute and good variability.1 Mrs. Abelove received her first Prostin gel, as the first step in the induction of labor, shortly after admission, her second at or about 12:30 p.m., and continued with Prostin until about 7:00 a.m., January 29, 1992, when mild contractions were noted. Membranes were artificially ruptured at 7:25 a.m., revealing clear fluid, and onset of labor was confirmed at 7:30 a.m. At 9:25 a.m., Pitocin was started, and Mrs. Abelove's labor slowly progressed until 7:15 p.m., when she began to push. Until that time, the fetal heart rate tracing was unremarkable or, stated differently, revealed a reassuring fetal heart rate, with normal/average long and short term variability. When Mrs. Abelove began to push, variable decelerations were noted to the 120s for 10 to 20 seconds, with a return to the FHR baseline of 150 to 160 beats per minute. Several other decelerations of a similar nature were noted prior to delivery, but not in sufficient number or intensity to reflect fetal compromise or injury. At 9:18 p.m., January 29, 1992, Joiner, the product of a spontaneous vaginal delivery, was born. Nuchal cord X 3 was noted; however, cord blood pH was 7.36 (normal). Joiner was Deelee suctioned to clear mucus, stimulated and administered oxygen by bag and mask; however, he "did not come around to stimulation [as expected]" and was transported to the neonatal intensive care unit for further management. Joiner was assigned Apgars of 5, 5, and 7, at one, five, and ten minutes, respectively. The Apgar scores assigned to Joiner 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 Joiner's Apgar score totalled 5, with heart rate being graded at 2; respiratory effort, muscle tone and reflex irritability being graded at 1 each; and color being graded at 0. At five minutes Joiner's Apgar score was unchanged. At ten minutes, his Apgar score totalled 7, with heart rate, muscle tone and reflex irritability being graded at 2 each, respiratory effort being graded at 1, and color being graded at 0. Joiner was admitted to the nursery at 9:25 p.m., and administered whiffs of oxygen. At the time, Joiner was noted to be flaccid (decreased tone); evidence general cyanosis; and exhibit flaring, grunting, and retracting (evidence of respiratory distress). Moist lungs, bilaterally, were also observed. Otherwise, Joiner's newborn infant exam was grossly normal. At 9:28 p.m., Joiner was placed in a oxyhood at 30 percent oxygen, and then increased to 50 percent. By 9:30 p.m., Joiner's oxygen saturation was noted at 100 percent, and his color improving (now pale pink). At or about 9:40 p.m., Joiner was examined by a Dr. Radu and lab work and a chest x-ray were ordered. At 10:00 p.m., following the results of the lab work, Dr. Radu lowered the oxygen to 30 percent. Joiner's oxygen saturation was noted at 98 percent, and he was described as pink with occasional retracting. Chest x-ray noted no acute cardiopulmonary disease, and he was diagnosed with respiratory distress syndrome of the newborn, which proved to be transitory. Course of treatment was continued oxygenation via oxyhood. At 10:30 p.m., Joiner continued to exhibit occasional flaring, grunting, and retracting; however, his color remained pink and he was observed to be active. By 11:30 p.m., Joiner's respirations were described as easy or unlabored, and his color continued pink. His condition remained stable through the night and at 8:20 a.m., January 31, 1992, oxygen was discontinued. At 11:20 a.m., cardiac and oxygen saturation monitors were also discontinued, and Joiner was transferred to the central nursery. There, he was bathed and placed under a warmer. At 12:45 p.m., the warmer was discontinued and Joiner was delivered to Mrs. Abelove where he was noted to latch on and nurse well. At 3:10 p.m., Joiner, in apparent good health, was discharged with his mother from the hospital. Joiner's subsequent development and medical care Joiner was followed at The Pediatric Group, by Dr. Thomas Fisk, for regular routine well-baby care following his discharge from the hospital, and his early infancy was apparently unremarkable; however, some mild delays in gross motor skills were observed at some point during his first year of life. At 13 months, Dr. Fisk saw Joiner for a physical examination, and his mother and grandmother expressed concern over his developmental progress, primarily his expressive language. Regarding these concerns, Dr. Fisk also noted: [His grandmother and mother] did report, however, at that time that he had some new found skills, was verbalizing a lot more, and we decided to watch him over the next few months and see him back at 15 months. Review of the record revealed that he had no vocalization at 9 months, so he had made some progress. At 13 months he was not walking and the only problem that I noticed was what appeared to be some trunkal hypotonia. Joiner was next seen by Dr. Fisk at 16 1/2 months and he observed that Joiner was still suffering from a delay in receptive language and gross motor development. Specifically, Dr. Fisk observed: . . . In receptive language, he does not seem to follow commands or simple instructions very well and he presently says only "mama" and "dada", "no", and has a rather unusual flow of speech. He does not have normal jargon and vocalizations are more grunting and non-fluid in nature. From a gross motor standpoint, is still cruising, but has not begun independent walking. Observation of his gait reveals what appears to be some generalized hypotonia but fairly good strength. Movements involving the upper and lower extremities, however, are also not very fluid and are awkward, however, I cannot put my finger on what seems to be wrong otherwise more specifically. Dr. Fisk's conclusion was generalized developmental delay, and he referred Joiner to Dr. Frank Lopez, a member of the Society of Developmental and Behavioral Pediatrics, to direct the developmental evaluation; however, Joiner was apparently not evaluated by Dr. Lopez until May 29, 1997, as discussed infra. Joiner had a computer tomogram (CT) of the brain on July 23, 1993, which was normal. More specifically, the report noted: No masses are detected. There are no intracranial calcifications. The ventricles are normal. No abnormal fluid collections are seen. At the request of Dr. Fisk, Joiner was seen by Dr. Michael Pollack, a pediatric neurologist on January 17, 1995. Dr. Pollack's report of that examination reads, in pertinent part, as follows: NEUROLOGICAL EXAMINATION: During the initial portion of the office visit, the patient makes minimal eye contact with the examiner. Subsequently he displays more social interaction both with the examiner and with his parents. He engages in mildly mischievous behavior and appears amused. He is not able to stack rings in order after demonstration and does not assemble a Gesell Form Board after demonstration. He does not point to body parts on request. He produces no intelligible words during the office visit and makes minimal attempt to communicate by gesture. He scribbles but does not attempt to copy a figure. Joiner is quite active and enjoys scattering rings about the room but displays no interest in representational play and very little interest in interactive play with the examiner. He does not vocalize abundantly. He does turn to voice. Pupils are equal and reactive to light. Limited view of the ocular fundi shows no abnormalities. There is a full range of conjugate, horizontal eye movement without nystagumus. No facial weakness or significant asymmetry are present. Gag reflex is preserved. Gait is normal. He is not able to cooperate for testing of strength or coordination but functional testing suggests normal strength in all limbs. Tendon reflexes are symmetrically ++ and plantar responses flexor. IMPRESSION: At a chronological age of almost 3 years, Jointer appears to be functioning below the 2 year level. He has facial features which raise the possibility of cerebral gigantism (Soto's syndrome), but these are relatively non-specific and it is noted that his facial features are similar to those of his father. In addition, multiple members of both families are tall as noted above. Although his most conspicuous delay is in the language sphere, other areas of cognitive development also appear to be affected. He has a number of features which fall in the autistic spectrum but does display the ability to interact socially as described above. He has had a variety of diagnostic studies, all of which have been normal. RECOMMENDATIONS: 1. Genetics consultation was suggested. 2. MRI scan of the head was also ordered since cerebral anomalies which are not evident on CT scan are sometimes demonstrated by MRI. The patient was referred to FDLRS and also to a speech/language pathologist. It is likely that he will benefit from medication to improve attention span and to reduce his high activity level, but, if the situation permits, it would be preferable to defer such medication for 1 or 2 years. His parents will call for the result of the MRI scan and the patient will return to the office for re-examination in one year. The results of the MRI scan and chromosome study were normal. Whether Joiner ever returned for re-examination by Dr. Pollack is not of record. Joiner continued to be followed by Dr. Fisk, who had resolved that Joiner suffered from pervasive developmental disorder. On Joiner's visit of June 4, 1996, at approximately 4 1/2 years of age, Dr. Fisk observed: . . . He attends Parton Elementary Pre-K program for children with developmental problems. Father indicates that he has made good progress especially with his expressive language over this last year, but he continues to be remarkably delayed. Expressive language skills are really at the 2-year level, and his visual attending is rated at the one-year level. He has very few skills above the 2-year level. He is extremely aggressive at school, very easily over stimulated, flaps his hands, stimulates himself, as is often seen in children with autism. He has much improvement when on his Ritalin with fair control over these particular symptoms, but the aggressive issue continues to be a major problem for the parents. Now that he is getting bigger, they literally can not go out of the house with him without getting into an aggressive situation. I have discussed in the past with these parents the need for him being involved with a specialist to manage his pervasive developmental delay. Insurance restrictions have preempted their attempts to do this, and they have been unwilling to see Dr. Frank Lopez here in town. I discussed his progress over the last year today in the office with the father. The last note of record by Dr. Fisk, relates to an office visit of February 27, 1997.2 At that time, Dr. Fisk observed: Patient well-known to me with pervasive developmental disorder. Joiner currently is in a developmental preschool situation and takes Ritalin. . . . Parents have noted a significant decrease in his aggressive tendencies and they have been helped out significantly by their present behavioral therapist who has gone to the school, come to their home, and tried to work a behavior program out for Joiner. He is much less aggressive, more cooperative in the classroom, settles down and does at least attend and participate, at least significantly more than he used to. He still has significant language problems, repeats a few words back when spoken to him, but is really still not putting words together in sentences; has significant communication difficulties. Has been feeling well over the time frame of the last several months. Mom was very reluctant originally to consider using Ritalin, but she has come to grips now with the fact that he seems to be doing well on it. They have not gotten involved with child psychiatrist, but have significant educational intervention ongoing. He does see OT and speech therapy as well. Been feeling well recently. Parents relate no medical problems. Uncooperative 5-year-old male who is tall for age, tends to cling to his dad in the office. He will ambulate, however, and cooperated with most of the exam until he had to lay down on the table. Even considering this, he was much better today than he has been in the past. . . . Chest is clear. Cardiovascular: normal. ABD: soft, nontender w/o organomegaly. GU: normal circumcised male. Testes descended. Back and extremities exam: essentially normal with normal gait. He has mild clinodactyly bilaterally. DTRs 2+ and symmetrical. Motor strength and tone equal and symmetrical as well. Hemoglobin today: 14.3. UA could not be obtained secondary to lack of cooperation - parents will be bringing that back. He could not cooperate with hearing or vision screen, but dad says he is scheduled to have his hearing retested next week. Joiner was seen by Dr. Frank Lopez on May 29, 1997. He observed, as follows: Joiner has been referred into this office by courtesy of Dr. Fisk. Joiner is here accompanied by his parents who serve as primary historians and report that he has been seen and had a work-up done by Dr. Colin Condron and Dr. Michael Pollack in the past. Their concerns are that they would like more information regarding Joiner's problems and "a more accurate diagnosis and supportive treatment plan." He has been diagnosed as Developmental Delay and Autistic Spectrum presentation. Mom and Dad are very concerned, not as much with the diagnostic category, but rather with how best to place and guide him. He is presently staffed into EMH at Partin Elementary and will be changing schools, going into TMH classroom due to his not keeping up. The Autistic Program has been considered, but the parents have not decided on its merits yet. Following consideration of Joiner's developmental history, family history, and physical examination, Dr. Lopez's impression was: Autism; Hypotonia; Dyspraxia. Given the proof, it cannot be subject to serious debate that Joiner suffers a serious neurologic impairment. What remains to resolve is the genesis of his impairment or, more pertinent to these proceedings, whether the proof supports the conclusion that his condition resulted from an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required by Section 766.302(2), Florida Statutes, for coverage to be afforded by the Plan.3 With regard to such issue, Petitioners contend that Joiner suffered an injury to his brain caused by oxygen deprivation (an hypoxic event) during the course of resuscitation, and that such injury was the cause of Joiner's neurologic impairment. In contrast, Respondent contends the proof is not consistent with hypoxic ischemic injury occurring during or immediately following child birth, but is consistent with a pervasive developmental disorder or autism.4 Respondent's view of the proof has merit. The genesis of Joiner's neurologic impairment To address the genesis of Joiner's neurologic impairment, the parties offered selected medical records relating to Mrs. Abelove's antepartum and intrapartum course, as well as for Joiner's birth and subsequent development. Portions of those records have been addressed supra, and further salient portions will be addressed infra. The parties also offered the opinions of three physicians as to the likely cause of Joiner's disorder. The physician selected by Petitioners was Danuta Deeb, M.D., board certified in pediatrics. The physicians offered by Respondent were Edward Lance Wyble, M.D., board certified in pediatrics and neonatology, and Michael Duchowny, M.D., board certified in pediatric neurology, pediatrics, and clinical neurophysiology. The medical records and other documentary proof, as well as the testimony of the physicians offered by the parties have been carefully considered. So scrutinized, it must be concluded that the proof does not allow a conclusion to be drawn with any sense of confidence that, more likely than not, Joiner's neurologic impairment was associated with an injury to the brain caused by oxygen deprivation occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, the proof demonstrates, convincingly, that Joiner's presentation is consistent with a pervasive developmental disorder, a disorder within the spectrum of childhood autism, which resulted from an anomaly in brain development, as opposed to a hypoxic ischemic injury during the birth process.5 In so concluding, it is observed that Joiner's course pre-delivery and post-delivery was inconsistent with hypoxic or ischemic injury having occurred during the course of labor, delivery, or resuscitation. First, the evidence documenting fetal heart rate during the course of labor and delivery does not support the conclusion that Joiner suffered an acute intrapartum event that led to hypoxic or ischemic injury.6 Further militating against the conclusion that Joiner's anomaly was caused by oxygen deprivation pre-delivery or new-onset hypoxia post-delivery, are the numerous inconsistencies between Joiner's presentation and development, and the clinical findings one would expect had he suffered hypoxic ischemic encephalopathy, secondary to perinatal asphyxia, during that period. Notably, Joiner's Apgar scores were 5, 5, and 7 at one, five, and ten minutes. Apgars of 5 do not represent a threatening situation to the brain, but provide a reflection of the infant's status where, as here, the infant is going through a 10-minute to 15-minute change process after birth. Importantly, the Apgar did not stay at 5, but progressed to 7 by ten minutes and the infant was essentially normal when examined by the pediatrician at 9:40 p.m. Clearly, the infant was improving over that period, which compels the conclusion that there was no ongoing insult.7 Had Joiner suffered an injury to his brain during or immediately following birth, there are a number of clinical findings one would reasonably expect to observe. An infant who has suffered a neurologic injury should demonstrate a 6-hour to 12-hour period of decreased tone, followed by evidence of hyperactivity and irritability. Moreover, in cases of substantial neurologic injury, the infant should generally evidence seizure activity within 8 to 24 hours. Beyond the first 24-hour period, the infant should demonstrate moderate to significant decreased tone, depending on the magnitude of the injury, and within the first 48-hour period the injured infant should evidence resistance to feeding. Here, Joiner's decreased tone was resolved by 9:40 p.m., there was no evidence of hyperactivity and irritability, and no evidence of seizure activity. Moreover, at approximately 15 hours of life, Joiner was shown to latch on and breast-feed well. It is further observed that, while he suffered respiratory distress, Joiner did not suffer respiratory arrest or failure, and did not require intubation or mechanical ventilation. Rather, his respiratory effort was adequate to ventilate and, as confirmed by pulse oximeter, he was adequately oxygenated. Also inconsistent with brain injury during or immediately following birth, there was no evidence of other system dysfunction, such as the heart or kidney8; no evidence of brain swelling within 24 hours of birth9; Joiner's lab studies were normal, including cord pH; and follow-up blood-gas studies did not reflect acidosis of substance. In sum, there was no clinical evidence in the newborn period that Joiner's neurologic presentation was abnormal or, stated differently, that he had suffered or was suffering a neurologic injury. Finally, it is observed that Joiner's presentation is consistent with pervasive developmental disorder, a disorder within the spectrum of childhood autism, a serious neurologic disorder in which affected children display abnormalities in socialization, behavior, language and, occasionally, stereotyped motor movements. Such disorder is developmental in origin (an anomaly in brain development), acquired prenatally, and is not associated with events that might occur during labor, delivery, or resuscitation. Given the proof, it cannot be concluded that, more likely than not, Joiner's neurologic impairment was associated with a brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Notably, Joiner's presentation at birth and his neonatal course were not consistent with an acutely acquired neurological injury, and it is improbable that he could have experienced an acute injury during labor and delivery, or immediately thereafter, without evidencing a single clinical symptom of such damage. Conversely, the existence of a prenatally acquired (predating labor and delivery) brain disorder (developmentally based) would be consistent with Joiner's presentation at birth and subsequent development.
The Issue At issue in this proceeding is whether Alen A. Valiente suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Alen A. Valiente (Alen) is the natural son of Dirvisley Rodriguez and Alex Valiente. He was born a live infant on June 13, 1992, at Mount Sinai Medical Center, a hospital located in Miami Beach, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Alen was Robert Fields, M.D., who was, at all times 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. During the course of Alen's delivery difficulty was encountered with the delivery of his head and vacuum extraction was applied. Subsequently, difficulty was also encountered in the delivery of Alen's body when a shoulder dystocia developed, and upon extraction Alen suffered an injury to his left upper brachial plexus which ultimately evidenced a left upper brachial plexus palsy (Erb's palsy). Upon delivery, Alen presented with Apgar scores of 4 at one minute and 7 at five minutes, required bagging due to poor respiratory effort, and was transferred to the neonatal intensive care unit (NICU). Upon admission to NICU, Alen was observed to be limp, pale, and suffering respiratory distress, which necessitated the continued administration of oxygen, poor tone was noted in his left upper extremity, and a large cephalhematoma was noted on the surface of the cranial bone. A CT scan of the brain was performed on June 15, 1992. That scan reflected that Alen had suffered depressed fractures of the right parietal bone with overlying cephalhematoma and underlying subdural hematoma. A CT scan follow-up of June 18, 1992, evidenced decreasing size of the subdural, and the cephalhematoma gradually disappeared over three months. On June 22, 1992, following treatment for hyperbilirubinemia with phototherapy, Alen was discharged to the care of his parents. Although Alen suffered perinatal asphyxia, as well as skull fractures, a cephalhematoma and a subdural hematoma, as a consequence of a difficult extraction, the proof fails to demonstrate that he suffered any significant brain insult as a consequence of those events. Indeed, Alen was most recently examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, who observed that, apart from the left upper brachial plexus palsy (Erb's palsy), there were no other clinical manifestations of physical impairment and Alen's mental status was age appropriate. In this regard, it is notable that Alen rolled over at five months, sat at six months, stood at eight months, walked at 10 months, said words at twenty months, was fully toilet trained by age two and, consequently, achieved all of his milestones without difficulty. It is further notable that Alen is able to walk without difficulty despite his Erb's palsy, that his speech is well articulated, and his conduct is socially and behaviorally age appropriate. Given the foregoing, it is the opinion of Dr. Duchowny, which is credited, that, apart from the Erb's palsy, Alen does not suffer any substantial physical impairment and, likewise, does not suffer any substantial mental impairment. As for the Erb's palsy, such physical impairment arose from an injury to "the roots that are outside the spinal cord" (the brachial plexus nerve) and such injury is not, anatomically speaking, an injury to the brain or spinal cord. Accordingly, the proof fails to demonstrate that Alen suffered an "injury to the brain or spinal cord . . . at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period . . . which render[ed] . . . [him] . . . permanently and substantially mentally and physically impaired" so as to be entitled to compensation under the Florida Birth-Related Neurological Injury Compensation Plan. Section 766.302(2), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the petition for compensation filed by Dirvisley Rodriguez and Alex Valiente, as parents and natural guardians of Alen A. Valiente, a minor, be and the same is hereby denied with prejudice. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of June 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June 1995.
The Issue Whether Jordan Green, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the notice provisions of the Plan were satisfied.
Findings Of Fact Preliminary findings Petitioners, Kizzy Bouler Green and Benny Green, are the parents and natural guardians of Jordan Green, a minor. Jordan was born a live infant on October 3, 1995, at Regency Medical Center, a division/campus of Winter Haven Hospital, in Winter Haven, Polk County, Florida, and his birth weight exceeded 2,500 grams. Among the physicians who provided obstetrical services at Jordan's birth was Vincent Gatto, M.D., who, at the time, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Green's antepartum course and Jordan's birth Mrs. Green's antepartum course was without apparent complication until approximately 12:37 p.m., October 3, 1995, when, with the fetus at term (40 weeks by last menstrual period) and an estimated date of delivery of October 1, 1995, she was involved in an automobile accident in Winter Haven, Florida. Emergency medical services (EMS) responded to the scene and, following arrival (at 12:53 p.m.) noted: P[atien]t denies any traumatic pain . . . . [Pt] states immediately following accident that H20 broke, felt no fetal movement . . . . Mrs. Green was "c-spined" (immobilized), an IV was established, and she was transported to Winter Haven Hospital, where she was admitted to the Emergency Department between 1:10 p.m., and 1:20 p.m. On admission, Mrs. Green reported that she was having contractions since the accident, about 3-4 minutes apart, and that she had not felt the baby move following the accident. Mrs. Green was examined by Charles Henrichs, M.D., the Emergency Department physician, between 1:10 p.m., and 1:20 p.m. Dr. Henrichs reported Mrs. Green's history and the results of her physical evaluation, as follows: HISTORY OF PRESENT ILLNESS: This 18-year-old white female primigravida was the unrestrained driver of a car which reportedly was struck by another vehicle in the front end at a significant rate of speed . . . . She indicates that she is having contractions of her uterus, that she thinks her water broke, and that she has not felt any fetal movement since the accident. PHYSICAL EXAMINATION: * * * GENERAL: She is alert and fully oriented and quite lucid. She is fully immobilized by EMS. Primary survey shows the airway to be patent, breathing to be equal and unlabored, circulation to be good with all extremities, warm and with good pulses and there to be no neuro deficits. HEENT: The head shows no visible or palpable signs of trauma. The immobilization was removed, and the neck was entirely nontender with full range of motion. Eyes PERRL/EOMI. Maxillofacial and dentition stable. LUNGS: Clear. CHEST: No chest wall tenderness. HEART: Regular rate and rhythm. MUSCULOSKELETAL: Lower spine, hips, pelvis nontender. ABDOMEN: The abdomen shows a gravid uterus. There are no tetanic contractions. I detect no fetal movements. Fetal heart tones were auscultated for by the nurse and by myself. I was briefly able to listen for fetal heart tones and heard none before my discussions [by telephone] with the obstetrician [at Regency Medical Center, Dr. Matt Koike] . . . . PELVIC: Exam shows a Nitrazine to be negative, vertex presentation, . . . [fingertip to] 1 cm dilated, no bleeding . . . . NEUROLOGIC: She has normal sensorium, motor, sensation and reflex findings. . . . The IV established by EMS is maintained, and she is maintained on oxygen. I have discussed the case with Dr. Koike who responded promptly, and he indicated that we should make arrangements for her transfer to the Regency but to obtain a limited abdominal sonogram for fetal heart activity. This was obtained on an emergent basis, and the fetal heart rate was between 80-90. Upon her return to the emergency department, her exam is essentially unchanged [with contractions 3-5 minutes apart, and no fetal movement]. She was maintained on oxygen and intravenous fluids and transferred to the awaiting ambulance for immediate transfer to the Regency . . . . PROVISIONAL DIAGNOSIS: 1) Abrasions. 2) Contusions. 3) Fetal distress in a term primigravida. Mrs. Green was transported to Regency Medical Center, where she was admitted at or about 2:10 p.m., and, following a sonogram which revealed a fetal heart rate (still bradycardiac at 80-90 beats per minute), she was wheeled directly to a surgical suite and an emergency cesarean section was performed. Dr. Koike described Mrs. Green's history and Jordan's delivery in his Operation Note, as follows: HISTORY: . . . An emergency vehicle brought the patient to the emergency service at Winter Haven Hospital and Dr. Charles Heinrichs, emergency physician, as well as the nursing staff could not hear a fetal heart or detect the fetal heart by Sonicate. Multiple trauma was evaluated and she was ruled out any central nervous system injury, including head injury. Dr. Koike was on call for OB/GYN backup and was called. He was told that there was a fetal demise term pregnancy patient present as a result of a car accident in the emergency service. Dr. Koike asked if there was a sonogram and the response was that a sonogram [had not been done]; however, it was available immediately. A sonogram was immediately performed and showed a severe bradycardia. Dr. Koike was told that there was an emergency vehicle available ready to take the patient over the Regency if need be. At that time, the decision had to be made if she should be operated at the main campus or the Regency Medical Center. However, at the Regency Medical Center there were at least five doctors available near the nursing station, as well as Dr. Kong [a neonatologist]. There was no surgery going on at that time at Regency, and an anesthesiologist was available, as well. It was decided it would be faster overall to bring the patient over and make sure the baby was alive and surgery to be done at Regency Medical Center. An ambulance brought the patient to Regency and the patient was wheeled directly to the recovery room where a sonogram was performed by Dr. Gatto and Dr. Koike, making sure there was still a fetal heart rate present. There was a fetal heart present, and the patient was wheeled directly to the surgical suite and surgery was performed. PREOPERATIVE DIAGNOSIS: Fetal distress, status car accident trauma; intrauterine pregnancy at term. POSTOPERATIVE DIAGNOSIS: Severe oligohydramnios with severe bradycardia, with ruptured membranes. OPERATION: Primary low segment transverse cesarean section delivery of baby boy, 8 pounds 13 ounces, Apgars of 1 at one minute, 4 at five minutes and 8 at 10 minutes at 2:29 p.m., on October 3, 1995. SURGEON: Matt J. Koike, M.D. ASSISTANT: Vincent Gatto, M.D. * * * OPERATIVE FINDINGS: Oligohydramnios. There was blood in the uterine cavity. PROCEDURE: . . . The patient was brought to the OR, an IV was already in. The patient was placed in the supine position, the abdomen was doused with Betadine solution and draped quickly for primary cesarean section. The Foley was already in place and draining clear urine. An incision was made 3 cm above the symphysis pubis with a Pfannenstiel incision to the skin, through the subcutaneous tissue and fascia. The peritoneum was entered longitudinally. Then the uterus was incised at low segment. As soon as the uterine cavity was entered, it was evidence there was blood in the uterine cavity. However, the baby's head was delivered and the nasopharynx suctioned out with DeLee suction and then the baby was delivered without any problem. The umbilical cord was clamped in two places and incised between. The baby was handed over to Dr. Kong for her care . . . . At delivery, Jordan was severely depressed (blue and limp, with no spontaneous respirations, and a heart rate of approximately 80 beats per minute), and was immediately intubated. Spontaneous respirations were noted at 2-3 minutes of life. Arterial cord blood gas revealed, following delivery, a pH of 6.65 and base excess of -31.4, consistent with severe acidosis and acute brain injury (caused by oxygen deprivation), most likely within 30 to 45 minutes of delivery. At or about 2:45 p.m., Jordan was transported to the neonatal intensive care unit (NICU) for further observation and management, and at 5:20 p.m., he was transferred to Tampa General Hospital, where he remained until discharged to his parents' care on October 21, 1995. While there, sequential CT head scans (on October 9, 1995, and October 18, 1995) revealed findings consistent with diffuse ischemic encephalopathy. Subsequent evaluations following discharge confirmed significant brain injury, with severe delay in all areas of development. 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 . . . 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. See also Section 766.309(1)(a), Florida Statutes. Here, it is undisputed that Jordan suffered an injury to the brain caused by oxygen deprivation (secondary to placental abruption, precipitated by the automobile accident) which rendered him permanently and substantially mentally and physically impaired. What remains to resolve is whether the brain injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. As to that issue, Petitioners are of the view that the injury occurred following the accident, but before delivery, and that Mrs. Green was not in labor during that time period. In contrast, while NICA and the Intervenors agree the injury followed the automobile accident, they are of the view that the proof supports the conclusion that Mrs. Green was in labor and, consequently, the injury occurred during labor, delivery, or resuscitation. Pertinent to this case, when the proof demonstrates that the infant suffered an injury to the brain caused by oxygen deprivation that rendered him permanently and substantially mentally and physically impaired, a rebuttable presumption arises that the injury is a "birth-related neurological injury," as defined by the Plan. Section 766.309(1)(a), Florida Statutes. Under the circumstances of this case, the presumption is that Jordan's injury occurred "in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital." Consequently, the issue is whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of such presumption the record demonstrates, more likely than not, that Jordan's injury occurred during labor, delivery, or resuscitation.1 Here, there was no credible or persuasive evidence produced to support a contrary conclusion.2 Indeed, the credible proof was consistent with the presumption.3 The notice provisions of the Plan While Petitioners have stipulated that the giving of notice by the hospital and the participating physician prior to delivery was not practicable, they contend the notice provisions of the Plan were not satisfied because post-delivery notice was not given in a timely manner. Pertinent to this case, at the time of Jordan's birth, Section 766.316, Florida Statutes, prescribed the notice requirement, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. In Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997), the court resolved that the notice provision existent at the time of Jordan's birth required, "as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, healthcare providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." Here, since the giving of notice was not practicable prior to delivery, the hospital and the participating physician were not required to give predelivery notice. As for Petitioners' contention (that the notice provisions of the Plan were not satisfied because post-delivery notice was not given in a timely manner), it must be resolved that, given "the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies," post-delivery notice is not required, as a condition precedent to invoking the Plan as a patient's exclusive remedy.4 Id. at 309. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995)("The statute is silent as to when notice is to be given, but it would make little sense to allow the patients to be apprised of rights and limitations after the services leading to the alleged injuries have been performed.")
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 this proceeding is whether Briana Gwendolyn Dabriel, 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 Edward Dabriel and Wendy Breedlove Dabriel are the parents and natural guardians of Briana Gwendolyn Dabriel (Briana), a minor. Briana was born a live infant on December 1, 1998, at Aventura Hospital and Medical Center, a hospital located in Aventura, Florida and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Briana was Mark Firestone, M.D., who was, at all times 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 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, Briana's neurologic presentation is dispositive of the claim. Briana's neurologic status On February 7, 2000, following the filing of the claim for compensation, Briana was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. The results of Dr. Duchowny's examination were reported as follows: PHYSICAL EXAMINATION reveals an alert 14 month old black infant. The weight is 21- pounds. The skin is warm and moist. There is a healed surgical scar over the left lateral neck. There are no dysmorphic features and the spine is straight. The head circumference measures 46.4 cm (including dreadlocks). There are no cranial or facial anomalies or asymmetries. The anterior fontanelle is still open, but quite small. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. Peripheral pulses are 2+. NEUROLOGIC EXAMINATION is significant for normal cranial nerves and an appropriate mental status. She makes cooing and babbling sounds quite frequently and is very interactive socially. Briana does not drool. There is full extraocular movements and the pupillary light responses are intact to direct and consensually presented light. Brief fundoscopic examination is unremarkable. The pigmentation is dark brown bilaterally. There is a marked asymmetry of upper extremity function. The left upper extremities are smaller than the right for the fingers, hands, forearm and arm compartments. There is a decrease in muscle bulk and some hollowing in the left biceps and triceps regions. The thumb is fisted. The upper extremity is held in a position of internal rotation and flexion at the shoulder, with flexion at the elbow and wrist. The temperature is similar to the right. Gross sensation appeared to be intact, but was difficult to examination with any confidence. There is a marked reflect asymmetry being 2+ on the right biceps, but dropped on the left. The lower extremity reflexes are intact and there is no asymmetry of strength, bulk or tone. I did think that the left leg showed some eversion at the hip. Briana's gait is stable, but she tends to walk on tiptoes while running. Tests of cerebellar coordination, including heel-to-shin maneuvers were not tested. The neurovascular examination revealed no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Briana's neurologic examination is significant for a moderate to severe left Erb's palsy [consequent to a brachial plexus injury suffered at birth], status post surgical repair. The prognosis for further recovery seems guarded with the exception of functionality that may return in the course of neuroregeneration. In contrast, Briana's cognitive development appears to be proceeding at age level and her head is growing normally. A brachial plexus injury, such as that suffered by Briana during the course of her birth, is not, anatomically, a brain or spinal cord injury, and does not affect her mental status, which has been noted as essentially normal. Consequently, while Briana has been shown to have suffered a substantial and permanent injury (to her left brachial plexus) during the course of birth, it is Dr. Duchowny's opinion, which is credited, that such injury is not related to the brain or spinal cord and, moreover, that she has not been rendered permanently and substantially mentally and physically impaired.
