The Issue Whether this cause is barred by the statute of limitations found at section 766.313, Florida Statutes; Whether Luis Vazquez, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan; and Whether lawful pre-delivery notice was provided by the hospital and the obstetricians involved in labor, delivery, and resuscitation in the immediate postdelivery period related to Luis Vazquez's birth.
Findings Of Fact Stipulated Findings of Fact Petitioners, Teresa Vazquez and Rigoberto Vazquez, are the mother and father/natural guardians of Luis Vazquez, a minor. The on-call obstetrician during Teresa Vazquez's labor and delivery was Intervenor Eva Jennifer Salamon, M.D. The delivery was performed by Intervenor Tonya Blankenship Nicholson, CNM. Luis Vazquez was born at Winter Haven Hospital, d/b/a Regency Medical Center, a licensed Florida hospital in Winter Haven, Florida, on January 5, 2004. Luis Vazquez's weight at birth was 3,313 grams. Luis Vazquez was delivered vaginally. Luis Vazquez's medical condition and treatment is as documented in the birth records of Winter Haven Hospital/Regency Medical Center. Intervenors, with the exception of Maria Kong, M.D., and Bond and Steel Clinic, P.A., are NICA participants. Intervenor Maria Kong, M.D., is a neonatologist who rendered medical care to Luis Vazquez. Carlos Gabriel, M.D., did not provide obstetrical services during labor, delivery, or resuscitation in the immediate postdelivery period. Luis's birth was a single gestation, and he was born alive. COMPENSABILITY Statute of Limitation The birth herein occurred on January 5, 2004. The claim was filed May 10, 2010. The claim is barred as against NICA, pursuant to section 766.313. Injury to Luis's brain or spinal cord by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period On January 5, 2004, at 2:37 a.m., Mrs. Vazquez, Luis's mother, presented to the obstetrical department at Winter Haven Hospital. Mrs. Vazquez was at 38 weeks' gestation, and she reported to hospital staff that she had already experienced a spontaneous rupture of her membranes at approximately 2:00 a.m. Dr. Salamon was the on-call obstetrician and was notified at Mrs. Vazquez's admission. An examination revealed that Mrs. Vazquez was one centimeter dilated, 50% effaced, and at minus two (-2) station. At 2:50 a.m., labor orders were received, including oral orders from CNM Nicholson, to administer low dose Pitocin, to be started at 6:00 a.m., at 6 mu and increased every 15 to 30 minutes by 2 mu to a maximum of 24 mu. At 4:00 a.m., January 5, 2004, Mrs. Vazquez had mild- to-moderate contractions every four to five minutes. Luis's fetal heart rate was 130 to 140 beats-per-minute (BPM) with moderate long-term variability and occasional decelerations to 100 with moderate contractions and good recovery. At 5:30 a.m., mild contractions were documented every two-to-five minutes with a fetal heart rate of 120 to 130 BPM, with minimal long-term variability. A large amount of clear amniotic fluid was noted. Throughout the morning of January 5, 2004, Pitocin was gradually increased from 6 mu at 6:00 a.m., to 40 mu at 12:15 p.m. Moderate contractions occurring every one-and-a-half to three minutes, with the contractions increasing in intensity to "moderate-to-strong" after 9:45 a.m., were noted. Throughout the morning, the fetal heart rate (FHR) remained consistent within 120 to 140 BPM, with average long-term variability. Fetal heart rate decelerations, signaling a problem with the baby, began three hours prior to delivery (about 3:00 p.m., on January 5, 2004) and worsened as labor progressed, as shown on the fetal heart rate monitoring strips. There was fetal tachycardia and significant variable decelerations just prior to birth. At approximately 3:20 p.m., the mother had a strong urge to push. The cervix was still palpable on the fetal head and not reducible. The mother was positioned on her side to await complete dilation. At 4:00 p.m., dilation was complete, and the mother was pushing. The fetal heart rate was 145-155 BPM with average long-term variability. At 5:15 p.m., variable decelerations were noted during pushing. The baby began to crown. At 5:36 p.m., there was a spontaneous vaginal delivery. When delivered by CNM Nicholson, Luis's umbilical cord was wrapped loosely once around his neck. He had decreased tone. He was limp; not moving; made no respiratory effort; and did not cry. He required immediate gastric suctioning, bag and mask ventilation, oral oxygen, and due to respiratory distress, an endotracheal tube was placed. At delivery, Luis suffered from hypotension,11/ which subsequently required treatment with dopamine and other pressor agents for seven days. At 5:50 p.m., Luis was transported to the Winter Haven Hospital/Regional Medical Center Neonatal Intensive Care Unit (NICU) with continuous amubag ventilation. Luis's Apgar12/ scores were two at one minute, two at five minutes, three at 10 minutes, three at 15 minutes and eight at 20 minutes. The more immediate scores indicate that he was depressed at birth. The longer the Apgar scores remain low, the greater the hypoxia that has occurred. It is uncommon to take an Apgar score at 15 minutes or 20 minutes. However, by 20 minutes postdelivery, Luis was on a respirator/ventilator in the NICU, so the Apgar reading at 20 minutes does not demonstrate any real improvement. Luis's initial umbilical artery cord blood had a pH- 7.05 with a base excess of 16.6. At 6:25 p.m., his arterial blood gas had a pH of 7.105 with a base excess of -22.6. This means that he had suffered metabolic acidosis prior to his delivery to the NICU unit. At 6:50 p.m., Luis exhibited a one-time incident of posturing movements suggestive of seizure activity. Upon his admission to the NICU, Luis's color and circulation were poor. Immediately upon arriving at the NICU on January 5, 2004, Luis was placed on a respirator, and this artificial respiration was continuously maintained up to, and through, his transfer to Arnold Palmer Hospital's Neonatal Unit at 12:05 a.m., on January 6, 2004. The first time Luis breathed room air was in Arnold Palmer Hospital. Neonatologist Kong saw Luis in the NICU within an hour of birth, and testified that he was not clinically stable until removed to Arnold Palmer Hospital. Swelling of Luis's scalp was visible on January 5, 2004. That date, MRI and CT scans were normal. However, another MRI and CT scan on January 15, 2004, showed elevated signal in the thalami, the internal capsules and parieto- occipital lobes of Luis's brain. These scans are consistent with an hypoxic ischemic event and represent a fairly classic pattern for acute hypoxic ischemic insult. Upon discharge from Arnold Palmer Hospital, Luis's diagnosis included hypoxic ischemic encephalopathy (brain damage from lack of oxygen). All the medical experts who testified herein agree that Luis's injuries were not the result of a genetic or congenital abnormality. With regard to the nature and timing of Luis's brain injury, Petitioners presented the testimony of Camille DiCostanzo, RNP, MS, NNP, specializing in neonatal care, and Robert Cullen, M.D., a pediatric neurologist. The opinion of a neonatal nurse practitioner is not generally accorded the same weight as that of an allopathic or osteopathic physician, even if the physician is not board- certified in the same medical specialty, but here, there are other reasons to assign little weight or credibility to the testimony of Nurse DiCostanzo. Nurse DiCostanzo testified that her specialty is not labor or delivery; that she is not familiar with how the section 766.302(2) statutory phrase, "labor, delivery, or resuscitation in the immediate postdelivery period" has been interpreted by DOAH or Florida's courts; and that she has no opinion whether an injury by oxygen deprivation occurred during the labor or delivery related to Luis. However, in her opinion, because Luis was stable on the ventilator which was breathing for him in NICU at 20-30 minutes of life, then the immediate postdelivery period had ended at that point in time. Her conclusion to that effect is directly contrary to Florida case law, which provides NICA coverage for a baby delivered in a life-threatening condition provided there are ongoing and continuous efforts at resuscitation, as there were here.13/ Dr. Cullen, a board-certified pediatric neurologist, testified on Petitioners' behalf that Luis suffered both an hypoxic brain injury (brain injury from oxygen deprivation) during labor and delivery and a brain injury from hypocarbia (excessive carbon dioxide to the brain) while Luis was on the ventilator in the NICU. However, Dr. Cullen was unable to apportion the amount of brain injury between the hypoxic episode during labor and delivery and the brain injury due to hypocarbia which he postulated had occurred in the NICU. NICA presented the testimony of Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis has reviewed hundreds of NICA cases, and herein, he reviewed the medical records of Luis and Luis's mother. He opined, within reasonable medical probability, that Luis suffered oxygen deprivation to his brain during labor and delivery, which oxygen deprivation continued at least an hour into the immediate postdelivery period (when the first blood gas was drawn), resulting in brain injury. According to Dr. Willis, the brain injury can be timed by the significant acidosis at birth; by the worsening of the arterial blood gas base excess over the first hour of life; and by the seizure immediately after birth, which indicators form a pattern typical of newborns who have suffered hypoxic brain injury. In short, Dr. Willis testified credibly and coherently that Luis's postdelivery course was consistent with his having suffered an hypoxic ischemic encephalopathy during labor, delivery, or resuscitation in the immediate postdelivery period. Dr. Michael Duchowny is a board-certified pediatric neurologist who also is familiar with the NICA statute. He examined and tested Luis on November 10, 2010. He also examined all of the pertinent medical records. He concluded, within reasonable medical probability, that Luis had suffered an hypoxic brain injury during labor and delivery, but did not render an opinion as to when the immediate postdelivery period began or ended. Louis Halamek, M.D., a board-certified neonatologist, testified at the behest of Intervenor Kong. He concluded that Luis was not stable until after he was treated by Dr. Kong in the NICU. Therefore, Dr. Halamek opined that Dr. Kong was involved in Luis's resuscitation during the immediate postdelivery period. However, Dr. Halamek, like Nurse DiCostanzo, did not evidence any familiarity with the cases interpreting the section 776.302(2) statutory phrase "in the course of labor, delivery, or resuscitation in the immediate postdelivery period." Drs. Cullen, Willis, and Duchowny agreed that Luis suffered hypoxic ischemic encephalopathy due to hypoxia which occurred during labor and delivery. Intervenor Dr. Kong also testified that it was her impression that when she attended him in NICU, that Luis was experiencing neonatal encephalopathy, of which hypoxic encephalopathy is a subset and suggestive of brain injury during labor and delivery. Dr. Halamek's testimony was presented to refute Petitioners' assertion that the brain damage to Luis occurred after the immediate postdelivery period, and because Petitioners posit that Neonatologist Kong made some error in regard to Luis's respirator/ventilator in the NICU. Legal determinations in that regard are not within the purview of this proceeding. It is within the purview of this proceeding to find, upon the credible competent and substantial evidence presented, that at no time between his birth and his transfer to Arnold Palmer Hospital, was Luis able to survive without respiratory assistance of some kind, and further to find his brain injury occurred during labor, delivery and/or resuscitation in the immediate postdelivery period in Winter Haven Hospital's delivery room and NICU. Luis's permanent and substantial mental and physical impairment Although the other parties proposed that Petitioners had conceded in their Second Amended Petition that Luis is permanently and substantially physically impaired, Petitioners' post-hearing filings do not concede that point. Be that as it may, and even though, in this case, the burden of proof to establish that Luis is permanently and substantially mentally and physically impaired rests upon Respondent and Intervenors, the record affirmatively demonstrates that Luis is permanently and substantially physically impaired and permanently and substantially mentally impaired, as more fully described hereafter. Examinations by pediatric neurologists, Dr. Cullen on January 30, 2009, and Dr. Duchowny on November 10, 2010, provided competent substantial evidence that Luis is suffering from, and will always suffer from, cerebral palsy. He also suffers from quadripariparesis. His four limbs are spastic. His trunk is unstable. He was not toilet trained until age five, and at seven years of age, he still has accidents. As of Dr. Cullen's examination on January 30, 2009, (Luis's age five) and as of Dr. Duchowny's examination on November 10, 2010 (Luis's age of almost seven), Luis could not walk to any meaningful extent, and needed to use a wheelchair or braces to ambulate at all. At most, by age seven, he could walk only two steps together. Upon the evidence of the expert pediatric neurologists, it is found that this situation with regard to ambulation will not change significantly. In light of the foregoing, Luis's mother's and father's testimony that as of the date of the 2011 hearing, Luis uses a wheelchair only to get to the school bus, and the mother's testimony that Luis walks throughout their house wearing his braces, has been interpreted as loving exaggeration. Luis has repeatedly been treated for seizures and will probably continue to need anti-seizure medicines for the rest of his life. His life expectancy is diminished to approximately 50 years by his several disabilities. Dr. Cullen had not seen Luis since 2009, but based on what he knew then and a review of Dr. Duchowny's 2010 report, Dr. Cullen was of the opinion that Luis has a deficit in expressive and receptive language, cognitive delay, and spastic quadriparesis, and that Luis will always have significant motor impairment and cognitive deficits which will impact his employability, rendering him unemployable. In terms of mental achievement, Dr. Cullen believes that Luis will always function with some cognitive defects and will be classified as mildly retarded. Dr. Cullen declined to characterize Luis's permanent deficits as "substantial," preferring to call them "significant," but this is a distinction without a difference, based on Dr. Cullen's personal concept that because he has seen other children with worse defects (mostly physical) qualify for NICA benefits, because Luis is not so severely impaired as those NICA-accepted children, and because Luis has made the most minimal of improvements in one year, Luis is not "substantially" impaired. Despite Dr. Cullen's reluctance to use the term, "substantially physically and mentally impaired," that is what his evidence reveals. As to the permanency of Luis's condition, Dr. Cullen agreed that Luis will not be able to live independently and will need people to manage his financial affairs. Luis will require the care of a neurologist in the future, and also physical, occupational, and speech therapy. Luis will always have motor and mental deficits, including dependant ambulation. The evidence as a whole shows that Luis has never met any of his developmental milestones in a timely manner. On his 2010 examination by Dr. Duchowny, Luis's head circumference showed him to be microcephalic. (His head is too small for his body.) His fontanels were closed, so it is unlikely that his skull and brain will continue to grow. Luis exhibited a sucking response which only comes out when there is a paralysis of motor outflow for voluntary movement. His higher motor function is compromised. None of these features is likely to improve. At that point, Luis could only feed himself using a spoon and did not have the dexterity to use a knife or fork. The school records in evidence are sparse and stale, and apparently Luis was due for re-evaluation by his school's Exceptional Student Education (ESE) program in 2011, but in the 2009 records in evidence, educators noted that an alternative communication system (other than speaking) should be considered for Luis. Apparently, Luis's school administered four ESE evaluations on or about May 26, 2009: Bates, Vineland Adaptive Behavior Skills, DLS Domain, and Brigance Inventory of Early Development. One conclusion regarding the Bates review was, "In the cognitive area, Luis was successful on most items up to the 25-28 month level but was unable to complete most tasks at that level." On the Vineland Adaptive Behavior Skills portion, there is a notation that Luis could listen to a story for 30 minutes but was not able to listen to an informational talk for 15 minutes. Regarding the DLS Domain, there is a notation that Luis could use a fork with some spillage. On the Brigance scale, Luis was rated at the seven months' level for some activities; the 15 months' level for pointing to what he wants; and at the 12 months' level for fine motor skills. Even though the 2009 school assessment documents in evidence state that in 2009, Luis could, contrary to Dr. Duchowny's assessment a year later, use a fork "with minimal spillage," the undersigned has not assessed the two evaluations as a deterioration between 2009 and 2010 in Luis's ability to use a fork. If anything, it is merely a variation on different types of assessment on different days, but it does not evidence any improvement over the intervening period. The mother testified that current with the 2011 date of hearing, Luis could "eat anything," but this is an anecdotal assessment and does not, in the face of the expert evidence, demonstrate that Luis now can consistently and safely feed himself with a fork or manage the activities of daily living. Giving the benefit of the doubt to the parental testimony concerning Luis's condition immediately before the 2011 date of hearing, to the effect that Luis had added about 25 words to the 25-word vocabulary he evidenced when examined by Dr. Duchowny in 2010, such a limited (50+ words) vocabulary in a child almost eight years old is still woefully inadequate to demonstrate normalcy of either the ability to learn or the mental facility to retain information. Even so, there is no clear evidence that Luis can, today, pronounce these 50 words clearly, although he attends school, spending some time in a regular class and some time in an ESE class to assist him with speaking and counting. The parents testified that Luis currently likes to read books and play cards, but there is no competent evidence that he is doing more than looking at the pictures in the book or on the cards. Apparently, in 2009-2010, Luis could only count to eight, and he can now count to ten. He can now recognize letters, and say them with prompts, but he cannot recite the alphabet. The parents' testimony that Luis currently is able to say some words in Spanish, which is the family's primary language; play computer games and games on a cell phone; and reprogram a cell phone ring tone does not overshadow the foregoing evidence and expert testimony that Luis's cognitive abilities are permanently and substantially impaired. Herein, the undersigned has not been afforded the benefit of testimony from expert educators interpreting their tests other than as written; a view of, or testimony by, the child, Luis; or any other evidence that would reasonably support a finding that Luis is "cognitively intact." See Fla. Birth- Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349 (Fla. 1997); Adventist Health System/Sunbelt, Inc. v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 865 So. 2d 561 (Fla. 5th DCA 2004). Therefore, upon the expert and lay testimony and the evidence as a whole herein, it must be found that Respondent and Intervenors have demonstrated that Luis will not be able to translate his cognitive capabilities into adequate learning in a normal manner and that his vocational, as well as his day-to-day coping skills are impaired as a result of his brain injury which occurred during the statutory period. It appearing that the assistance that Luis will always require will have to address, or make-up for, his profound mental deficits as well as his physical deficits, it also must be concluded that Luis is permanently and substantially mentally impaired, as well as permanently and substantially physically impaired. Viewing the record as a whole, it is resolved that Luis suffered oxygen deprivation to the brain during labor, delivery, and/or resuscitation in the immediate postdelivery period in a hospital, which resulted in permanent and substantial mental impairment as well as permanent and substantial physical impairment. Where a claim is found non-compensable, the issue of notice by the participating health care providers (hospital and obstetricians) is rendered moot. Where, as here, a claim is found compensable, Petitioners may only proceed against those participating health care providers who have failed to give appropriate pre-delivery notice.14/ Pre-delivery Notice Section 766.316, provides: Notice to obstetrical patients of participation in the plan.--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 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. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.[15/] The formation of the provider/obstetrical patient relationship triggers the obligation to furnish notice. The determination of when this relationship commences is a question of fact. Once the relationship commences, the law implies that the notice must be given within a reasonable time. This determination depends upon the circumstances, but a central consideration should be whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery, which is a primary purpose of the notice requirement. Pre-registration is an appropriate time for such notice to be given. See Galen of Fla., Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So. 3d 742 (Fla. 2d DCA 2010); and Weeks v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 977 So. 2d 616 (Fla. 5th DCA 2008). Luis's mother, Mrs. Vazquez, received all her pre- natal care with regard to Luis at the County Health Department. None of the health care providers herein are associated with the County Health Department. The mother presented to Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital, Regency Medical Center on December 15, 2003, December 29, 2003, January 2, 2004, and finally January 5, 2004, Luis's birth date. Luis was delivered by Tonya Blankenship Nicholson, CNM, at Winter Haven Hospital/ Regency Medical Center on January 5, 2004. At all times material, Certified Nurse Midwife Nicholson was operating under a properly filed cooperative care plan/protocol/plan of treatment that named Drs. Carlos Gabriel and Eva Jennifer Salamon as her supervising obstetricians, and which permitted CNM Nicholson to administer Pitocin and perform vaginal deliveries. The physician responsible for supervising Tonya Nicholson at Winter Haven Hospital/Regency Medical Center, on January 5, 2004, was Eva Jennifer Salamon, M.D., who was the "on call" obstetrician at that time. At all times material, Dr. Gabriel, Dr. Salamon, and Nurse Nicholson were associated with the Bond and Steele Clinic, P.A., d/b/a The Bond Clinic. The Bond Clinic is a private corporation; is not a hospital; is not a "participating physician" as that term is defined by sections 766.301-766.316; did not provide any prenatal care to Luis's mother; and, as a separate entity from its participating physicians, is not required to give notice pursuant to section 766.316. Likewise, because no physician associated with the Bond Clinic, including but not limited to Dr. Gabriel, Nurse Nicholson, and Dr. Salamon, provided any private prenatal care to the mother in this case, through the Bond Clinic or otherwise, none of the Bond Clinic's professionals had any opportunity, independent of their "on call" status at Winter Haven Hospital, to provide pre-delivery NICA notice to the mother. Carlos Gabriel, M.D., was a participating physician in the NICA Plan in 2004. He did not provide obstetrical services to Luis or Luis's mother during labor, delivery, or resuscitation in the immediate postdelivery period. In fact, he has never had contact of any kind with either of them. Therefore, he was not required to give pre-delivery notice of NICA participation to Luis's mother. See Findings of Fact 10, 86, and 93. Eva Jennifer Salamon, M.D., was a participating physician in the NICA Plan in 2004. She did not provide individual pre-delivery notice to the mother. Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital and Regency Medical Center, was a hospital participating in the NICA Plan in 2004. There seems to be some dispute as to whether or not Winter Haven Hospital, d/b/a Winter Haven Hospital, Regency Medical Center was a "teaching hospital" as contemplated by section 766.309 (1)(b). Dr. Gabriel testified that "to his knowledge," neither Winter Haven Hospital nor Regency Medical Center was considered a teaching hospital. However, among the exhibits in evidence is a January 13, 2004, "Notice of Limited Liability," signed by Ms. Vazquez in the emergency room, a week or so after Luis's birth, disclosing that, All or part of the medical care and treatment at Winter Haven Hospital, including its Emergency Department, may be provided by the University of Florida Board of Trustees' employees and/or agents . . . who are under the exclusive supervision and control of the University of Florida Board of Trustees, and Winter Haven Hospital provides to the University of Florida Board of Trustees a clinical setting for health care education, research, and/or services. Probably, Winter Haven Hospital's arrangement with the University of Florida, primarily for Winter Haven's emergency room's staffing, would not render Regency Medical Center a "teaching hospital," but it is not necessary to resolve that issue, because there are two paths to invoking NICA coverage for certified nurse midwives. It may either be proven, under section 766.309(1)(b) that "obstetrical services were delivered . . . by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital," or it may be proven by establishing, pursuant to section 766.314(4)(c), that the certified nurse midwives, themselves, are deemed "participating physicians."16/ Here, it has been established that Tonya Blankenship Nicholson, CNM, had paid her NICA fee as a CNM and was a NICA participant in 2004, the year of Luis's birth; that she had the appropriate protocols/plan of care in place; and that she was reporting to a participating physician (Dr. Salamon) who also had paid the NICA assessment. See Findings of Fact 2-3, 8, 14, 22, 69-70. Therefore, in 2004, Ms. Nicholson was qualified, in her own right, as a "participating physician" under the NICA Plan. Nurse Nicholson also did not provide individual pre- delivery notice to Ms. Vazquez. Maria Kong is a neonatologist and not an obstetrician. Accordingly, she was not a NICA Plan participant at any time material to this case; was not required to give pre-delivery notice of NICA participation to Luis's mother17/; and did not do so. Mrs. Vazquez, Luis's mother, does not read or write English. Her native language is Spanish. Sometime in December 2003, after receiving all her prenatal care at the County Health Department, Mrs. Vazquez decided she would deliver at Winter Haven Hospital. Intervenors herein assert that appropriate pre- delivery notice of NICA participation was given to Mrs. Vazquez on behalf of the hospital and all NICA participants on December 15, 2003. Mrs. Vazquez testified that she never received a NICA brochure explaining the program, an explanation of the NICA program, or the name of the doctor who would deliver her baby, and that she never signed an acknowledgment showing that she had received a NICA brochure. However, despite some equivocation, Mrs. Vazquez also identified her signature on a Spanish-language NICA form, dated December 15, 2003, acknowledging her receipt of the NICA brochure which explains the NICA Plan, and demonstrated that she was able to read what she had signed. Translated into English, the December 15, 2003, form which the mother signed, reads: I was provided by the Winter Haven Hospital, Inc. information prepared by the Florida Birth Related Neurological Injury Compensation Association, and I was advised that [Dr. Gabriel] is a participating Doctor in this program and that some compensation is available in case neurological damages do occur during the labor or the resuscitation. To know more about this program, I understand that I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA) to write: Florida Birth Related Neurological Injury Compensation Association, Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, or can call: (904) 488-8191. Also, I certify that I am in receipt of a copy of the brochure prepared by NICA. (bracketed material filled in)(emphasis added) In December 2003, Winter Haven Hospital/Regency Medical Center required that obstetrical pre-registrations be by appointment only. It also was hospital policy and standard practice to schedule pre-registrations of Spanish-speaking mothers for a day-time slot when a translator (interpreter) would be available to assist them and to give NICA notice on behalf of the hospital and its on-call physicians. Hospital records indicate that on the evening of December 15, 2003, Luis's mother was only at Winter Haven Hospital from 10:12 p.m. to 11:15 p.m., and that she was there complaining of a cough, sore throat, abdominal pain, and pain in the lower legs. Therefore, her presence on December 15, 2003, was not a pre-arranged pre-registration, but was a first visit for medical treatment associated, at least partially, with her pregnancy. The evening of December 15, 2003, Wanda Colon né Hernandez, was scheduled to work from 7:00 p.m. to 5:00 a.m. Ms. Hernandez (married name: Wanda Colon) testified that her sole duty was to translate English to Spanish and Spanish to English for patients and health care providers. On December 15, 2003, Ms. Hernandez was paged by Karen Eyrich, a nurse assigned to Mrs. Vazquez. When Ms. Hernandez arrived at the room, Mrs. Vazquez was in the restroom and Nurse Eyrich was awaiting her. Based on the time of night that was documented on other forms signed by Mrs. Vazquez on December 15, 2003, the contemporaneous notes of Nurse Eyrich, the medical records for that date, and the clear, logical, consistent, and credible testimony of Ms. Hernandez, it is found that Ms. Hernandez translated for Mrs. Vazquez and medical personnel on that visit, and that the Spanish language form whereby Mrs. Vazquez acknowledged receiving an explanation of NICA was signed by Mrs. Vazquez and was witnessed by Ms. Hernandez at approximately 10:35 p.m. Receipt of the brochure prepared by NICA constitutes sufficient pre-delivery notice on behalf of a hospital or other health care provider.18/ Herein, the mother denied that a Spanish language translator was present when she signed the foregoing acknowledgment, but that is of little import since it was in her native Spanish; the mother was/is able to read Spanish; and the mother identified her own signature on the form. See Finding of Fact 85. Even so, Ms. Hernandez is credible that she was present and that she witnessed Mrs. Vasquez sign the NICA acknowledgment on December 15, 2003, as well as sign other hospital documents that amounted to pre-registration for Luis's birth, and that this procedure was followed that night, because it was then hospital policy that if a pregnant patient presented with a medical problem, that patient was to be pre-registered at that time. Ms. Hernandez is also credible that the line on the acknowledgment form for the physician's name was blank when she and Mrs. Vazquez signed the NICA notice form and that Dr. Gabriel's name appears on the NICA notice form purely because he was the on-call obstetrician on December 15, 2003, and his name was "filled-in" by someone in the hospital admitting office after Mrs. Vazquez and Ms. Hernandez signed the acknowledgment form. This subsequent "fill-in" of Dr. Gabriel's name by the hospital's administrative office may reasonably account for the mother's testimony that the form she signed "was blank" and that she was never told who would deliver her baby, but it does not explain why she signed the acknowledgment if she did not receive the brochure explaining NICA. Contrary to Mrs. Vazquez's vague and uncorroborated testimony that she had come to the hospital to pre-register earlier in the day and had been told over the phone to "just sign" all forms, the competent and substantial evidence supports a finding that her unscheduled hospital visit late in the evening of December 15, 2003, was her only appearance at the hospital that day, and that the hospital's first opportunity to give notice of NICA participation on its own behalf and on behalf of its on-call physicians occurred at that time.19/ Contrary to the mother's equivocal version of events, the testimony of Ms. Hernandez, whose signature appears on the December 15, 2003, notice acknowledgment form as a "witness" (in Spanish, "testigo") to the mother's signature, together with Ms. Hernandez's contemporaneous writing-in of the date and the information that the patient had no social security number, is the more logical, consistent, and credible. In support of Ms. Hernandez's testimony are contemporaneous notes, probably made by Nurse Eyrich, in Mrs. Vazquez's hospital records for December 15, 2003, memorializing that there was a "Wanda Hernandez interpreter at bedside" and that the patient "verbalized understanding" of the discharge instructions. Reminded in part by the acknowledgment form, Ms. Hernandez testified credibly and with considerable recall, as described above, with regard to specifics of her encounter with Mrs. Vazquez on December 15, 2003, such as the date and time; as to herself being paged; as to Mrs. Vazquez initially being in the restroom when Ms. Hernandez arrived; as to how Ms. Hernandez affixed her signature witnessing Mrs. Vazquez's signature on the NICA acknowledgment form; as to how Dr. Gabriel's name got on the acknowledgment form; and as to how her own signature appeared as a witness on other documents also signed by Mrs. Vazquez on December 15, 2003, such as a consent for treatment form. Ms. Hernandez also testified clearly and credibly concerning the standard disclosure and signature routine for giving NICA notice, in which routine the hospital had trained her, and also testified clearly and credibly concerning her own standard practice of implementing that required routine. Altogether, her testimony is admissible, logical, competent, and credible.20/ However, as might be expected, even with the additional signed paperwork and the notice form signed by both herself and Mrs. Vazquez to refresh her recollection, Ms. Hernandez had no present, independent memory, after seven intervening years, of her exact conversation with Mrs. Vazquez or of Mrs. Vazquez's physically signing the acknowledgment of the NICA notice and brochure. However, Ms. Hernandez was credible as to her usual, customary, and standard procedure for explaining NICA to Spanish-speaking patients, and that she was sure she had followed that procedure with Mrs. Vazquez on December 15, 2003. Ms. Hernandez testified credibly that, as part of hers and the hospital's standard practice and routine(s) in 2003, she would hand Spanish-speaking expectant mothers the hospital's standard paperwork, and explain in Spanish each part of that paperwork. The NICA acknowledgment form was about two pages into it. Ms. Hernandez routinely asked Spanish-speaking mothers to read the Spanish-language NICA acknowledgment form and then told them that both the hospital and all the physicians (obstetricians) on-call were NICA "participant providers." She next asked the Spanish-speaking mothers if they had any questions and would answer their questions as best she could. If, at that time, they had any further questions which she could not answer, she would call elsewhere in the hospital for more information or she would routinely tell the mothers to call the phone numbers on the acknowledgment form. Ms. Hernandez routinely asked the expectant mother to read the form before signing it, and then Ms. Hernandez would sign and date the acknowledgment form as a witness to the mother's signature on the acknowledgment form. Ms. Hernandez further testified that her standard procedure would be to sign as a witness only after she had actually observed the expectant mother sign. After the patient had signed the acknowledgment form, Ms. Hernandez would hand the mother the Spanish version of the NICA brochure, "Peace of Mind for an Unexpected Problem" and a copy of her signed acknowledgment of notice. Ms. Hernandez believed that she followed her standard procedure with Mrs. Vazquez on December 15, 2003. Altogether, this testimony was likewise logical, competent, and credible.21/ Therefore, the greater weight of the credible evidence shows Mrs. Vazquez did not attempt to pre-register earlier on December 15, 2003, and that her visit with some pregnancy-related complaints the evening of December 15, 2003, was the first opportunity the hospital had to give NICA notice on behalf of itself and on behalf of its on-call physicians. The greater weight of the evidence also shows that on that single evening visit, Mrs. Vazquez signed the acknowledgment of receiving NICA notice from the hospital and all its on-call physicians as described by Ms. Hernandez, who witnessed these events and that Mrs. Vazquez also received the explanatory NICA brochure at that time. There is no requirement that the names of the participating physicians be set forth in a written notice. Jackson v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 932 So. 2d 1125 (Fla. 5th DCA 2006). The NICA "Peace of Mind" brochure also has been held to satisfy the legislative mandate of providing a "clear concise explanation of a patient's rights and limitations under the [NICA] plan." Dianderas v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 973 So. 2d 523 (Fla. 5th DCA 2007). On December 15, 2003, Luis's mother was not seen or treated by any of the health care providers involved in this case. On December 29, 2003, Luis's mother presented to the hospital with complaints of contractions. She was evaluated and sent home. She was not seen by any of the providers involved in her labor, or in Luis's delivery or resuscitation on January 5, 2004. On January 2, 2004, Luis's mother presented to the hospital with complaints of no fetal movement. She was again evaluated and sent home. The physician/CNM listed on her records for that date is "T. Nicholson." Based on the exhibits related to this date, Mrs. Vazquez's visit appears to have resulted in a triage in the emergency room and a release home with instructions in Spanish. On January 5, 2004, Luis's mother presented to the hospital after her membranes had already ruptured spontaneously, and Luis was born, as more fully described above. Given the credible evidence as a whole, it must be concluded that the evening of December 15, 2003, was the first opportunity that the hospital had to give notice to Mrs. Vazquez of its participation and the participation of its on-call physicians in the NICA Plan, and that on December 15, 2003, Mrs. Vazquez received statutorily compliant pre-delivery notice of NICA participation by the hospital for itself and by the hospital on behalf of all its on-call participating physicians. Inasmuch as appropriate notice was given at the first opportunity/visit on December 15, 2003, it was not necessary to give repeated notice on December 29, 2003, January 2, 2004, or January 5, 2004. Moreover, pursuant to the provisions of section 766.316 and section 395.002(9)(b), incorporated therein, once the mother's membranes were ruptured on January 5, 2004, an emergency medical condition existed. See Finding of Fact 65. In making the foregoing finding of fact, the undersigned has not ignored Petitioners' argument that although the hospital may have given notice of Dr. Gabriel's NICA participation, the acknowledgment form signed by Mrs. Vazquez on December 15, 2003, does not specifically state that the hospital is a NICA participant and does not specifically name each of the health care providers in this case, notably Dr. Salamon and CNM Nicholson, who were involved in labor, delivery, or resuscitation in this case. However, section 766.316 provides that, "Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met." With or without that presumption, Ms. Hernandez's clear, credible testimony that she gave a contemporaneous oral explanation stating that "the hospital and all on-call physicians are participant providers in NICA" and that she handed Mrs. Vazquez the explanatory brochure published by NICA, it is more likely than not that on December 15, 2003, Mrs. Vazquez received appropriate notice for the hospital and for all on-call physicians, including Dr. Salamon. Inasmuch as CNM Nicholson qualified as a "participating physician" in her own right and was reporting to Dr. Salamon on the date of Luis's birth, pursuant to an appropriate pre-filed collaborative practice agreement/plan of care/protocols, which permitted her to administer Pitocin and perform vaginal deliveries, see Finding of Fact 78, it is also concluded that notice of CNM Nicholson's NICA participation was subsumed in the hospital's December 15, 2003, notice of NICA participation for itself and its on-call physicians, which date afforded the first opportunity that the hospital or any other health care provider involved in this case had to provide NICA notice to Mrs. Vazquez. Consequently, it follows that Mrs. Vazquez could have, at any time during the 21 days between notice on December 15, 2003, and delivery on January 5, 2004, contacted NICA for more information or selected another hospital and/or physicians for her labor and delivery. Therefore, it has been established that lawful pre- delivery notice was given by Winter Haven Hospital, d/b/a Winter Haven Hospital, Regency Medical Center, Dr. Salamon, and CNM Nicholson, and that the other Intervenors had no statutory duty to provide such notice.
The Issue Whether Jael Sutton, a minor, qualifies for benefits under Florida's Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Petitioner, Senboya Sutton, is the natural parent of Jael Sutton (Jael). At all times material, Senboya Sutton was an obstetric patient of Intervenor, Mark Davis, M.D., who was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by section 766.302(7). Dr. Davis provided obstetrical services "in the course of labor, delivery and resuscitation in the immediate postdelivery period in a hospital," as related to this case. Jael was born on November 28, 2006. At birth, Jael weighed in excess of 2,500 grams. Jael was a single gestation. Jael was born live at St. Joseph's. St. Joseph's is a licensed hospital located in Tampa, Florida. The parties stipulated that all notice requirements of the statute have been met and that the notice requirement of section 766.316, is not at issue herein.2 Coverage is afforded by the plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.3 Herein, it is undisputed that Jael is "permanently and substantially mentally and physically impaired." Also, as described more fully hereafter, all the testifying experts concur that Jael's underlying brain damage did not result from a mechanical injury, but did result from sepsis and/or meningitis. However, it remains for determination whether or not Jael's brain injury and permanent and substantial mental and physical impairment occurred in the course of "labor, delivery, or resuscitation in the immediate postdelivery period," hereafter referred to as "the statutory period."4 The following terms were defined within this record: "Hypoxia" means "not enough oxygen." "Cerebral ischemia" means "not enough blood is getting to the brain." "Perfusion," for purposes of the instant case, means "to pass blood through the brain to ensure adequate oxygen." For her pregnancy with Jael, Ms. Sutton was first seen by Dr. Davis on August 17, 2006. Her delivery date was estimated as January 25, 2007. On November 17, 2006, a vaginal culture was taken of Ms. Sutton. On November 25, 2006, it was reported as "positive" for Group B streptococcus (Group B-strep), a genus of bacteria that causes life-threatening infections in newborn infants.5 Dr. Chalhub testified that intrauterine infections are the leading cause of cerebral palsy in term infants. Jael was not a term infant, but cerebral palsy is one of the conditions with which he has been diagnosed. On November 27, 2006, at approximately noon,6 Ms. Sutton presented to St. Joseph's. She complained of a single episode of leaking fluid at 1:02 p.m. Hospital records characterized this as the onset of labor, despite Ms. Sutton's denial of contractions. The plan of treatment was to rule out spontaneous rupture of the membranes. A nitrazine test was performed to identify amniotic fluid outside the amniotic sac, and was negative. Dr. Davis was present and ordered a non- stress test. At 1:34 p.m., Ms. Sutton again complained of leaking fluid and mucus discharge was noted. At 1:58 p.m., Dr. Davis reviewed the fetal monitor strip and discharged Ms. Sutton. At approximately 5:50 p.m., on November 27, 2006, Ms. Sutton presented to UCH. Her membranes were noted as possibly ruptured, and she complained of small gushes of fluid since noon. Again, a nitrazine test was performed and was negative. A speculum vaginal examination was performed; fetal heart rate was monitored; and a non-stress test was performed. She was discharged home upon phone orders of the "on-call" physician and advised to follow up with her obstetrician. The next morning, before 10:00 a.m., Dr. Davis did an ultrasound in his office. The ultrasound showed what was believed to be decreased amniotic fluid; a 34-week, four day gestation; and ruptured membranes. Due to the Group B strep and the gestation in excess of 34 weeks, Dr. Davis initiated a plan of care to induce labor and perform a vaginal delivery. Later on November 28, 2006, Ms. Sutton was admitted to St. Joseph's. Examination by speculum showed positive nitrazine and a copious amount of fluid in the vaginal vault, which, in hindsight after Jael's birth, Dr. Davis recorded as "probably a high leak to begin with." A fern test for nitrazine was positive. The cervix was 2-3 centimeters dilated. Labor steadily progressed. At 11:32 a.m., a nurse noted a non- reassuring fetal heart rate. At 11:47 a.m., Dr. Davis reviewed fetal heart rate tracings from his office. These were better, without decelerations. Ms. Sutton was placed in a left lateral position and continuous face mask oxygen was maintained. At 11:49 a.m., another sterile vaginal exam was performed. The amniotic fluid was noted to be clear and of normal quantity. At 11:54 a.m., due to a non-reassuring fetal heartbeat, Dr. Davis called for an immediate Caesarean section. Jael's fetal heart rate was 160, just prior to the C-section. A low transverse uterine incision was performed at 12:16 p.m., and Jael was delivered. Throughout the C-section, under general anesthesia, Ms. Sutton's oxygen saturation levels remained at 100. There is no record of trauma or of mechanical injury to Jael during labor or delivery. Indeed, the parties agree that there was no mechanical injury to Jael during labor or delivery. See infra. The delivery record does not show checks or fill-ins for the following, but the following is printed or typed in on the delivery room record form: "suction bulb, suction catheter, tactile stimulation, oxygen/PPV[7], intubated, neonatologist present." Apgar scores were taken at one and five minutes after Jael's birth.8 Jael's one minute Apgar score showed: Heart rate 2 > 100 Respiratory effort 0 none Muscle tone 1 some flexion Activity 0 none Color 0 blue/pale Total 3 Jael's five minute Apgar score showed: Heart rate 2 > 100 Respiratory effort 2 good cry Muscle tone 1 some flexion Activity 1 grimace Color 1 extremities blue Total 7 It is a point of contention among the parties as to whether Jael was intubated in the delivery room or in the Neonatal Intensive Care Unit (NICU). It is more likely that intubation and administration of nitrous oxide began after he was stabilized, as evidenced by the good Apgar score at five minutes after birth. The "good cry" recorded at five minutes of life (12:21 p.m.) suggests that Jael was breathing on his own at that point, had stabilized, and was not intubated before his admission to the NICU at 12:40 p.m. Jael's cord blood gas was collected at ten minutes after birth at 12:26 p.m. Its pH measured 7.206. A cord blood of 7.2 or higher suggests absence of metabolic acidosis. Metabolic acidosis is a sign of a pathological condition, not of a mechanical injury or of oxygen deprivation.9 At 12:32 p.m., Jael was transferred by isolette from the delivery/operating room to NICU due to "post C-section respiratory status." It would be fair to say that, at this point, if not sooner, Jael's care passed from the NICA participating physician, who provided obstetrical services to the mother, to other health care professionals in the NICU. At 12:40 p.m., on November 28, 2006, Jael was admitted to the NICU. The records show that ventilation support was given, and Jael was intubated. No physician associated with Jael's delivery or NICU care testified. However, Dr. Katz, a pediatric neurologist, opined without refutation that intubation at that stage might have been for ventilation, but could as easily have been to keep Jael's airway open because he was born prematurely. The reasons that were contemporaneously documented for Jael's admission to NICU were "premi, 34 weeks, R/O sepsis." This notation most probably means, "34 week gestational, premature infant; rule out sepsis." "'Sepsis' refers to the presence in the blood or other tissues of pathogenic microorganisms or their toxins; the condition associated with such presence."10 As described more fully hereafter, all testifying medical experts, regardless of specialty, agreed that in the NICU, Jael suffered from vascular inflammation, decreased blood pressure, and diminished perfusion caused by infection. Where they disagree is whether it was sepsis or meningitis which was ultimately responsible for Jael's diminished blood supply to the brain. "'Meningitis' is an inflammation of the meninges, usually by either a bacterium (bacterial meningitis) or a virus (viral meningitis)."11 Upon admission to the NICU at 12:40 p.m., Jael's oxygen saturation levels were at 93 per cent, and despite continuing very low blood pressures, his oxygen saturation levels remained in the 80's and 90's until 6:40 p.m., that evening. Jael was not assessed again after NICU admission until 1:20 p.m. At that time, a nurse noted that she was unable to obtain his blood pressure in either leg, although no reason was given. Dr. Katz testified that this could mean anything, up to and including an ill-fitting blood pressure cuff. Jael's bedside glucose (BSG) was recorded as 10, and 50cc of D10 bolus were ordered. At 1:44 p.m., on November 28, 2006, the BSG was recorded as 43 and another bolus was administered. At 1:58 p.m., November 28, 2006, a blood culture was drawn which was not reported back until the next day, but when it was reported back, the blood culture was read as positive for Group B strep. 37. At 2:00 p.m. and 2:05 p.m., on November 28, 2006, boluses and antibiotics were ordered, but one or more antibiotics were not administered to Jael for the first time until considerably later. At 2:05 p.m., on November 28, 2006, orders were written for survanta and dopamine. Dr. Katz opined that Jael was in septic shock at this time. At 2:16 p.m. on November 28, 2006, Neonatologist Dr. Amaizu entered an NICU admission note that Jael was lethargic with decreased reactions to stimuli. Capillary reflex was > 2 sec. Jael had decreased tone and activity. Although perfusion was decreased, his skin was pink. The active diagnosis at that point was "hypoglycemia, prematurity, respiratory distress syndrome, R/O sepsis newborn." At 2:25 p.m., an NICU nursing assessment was done. Jael was described as withdrawn, flaccid, lethargic with absent reflexes (suck, rooting, moro, and grasp). Central cyanosis (blueness in the torso) was observed. At 3:07 p.m., dopamine was administered. On the following day, November 29, 2006, Terry Declue, M.D., performed an endocrinology consult on Jael, who was on nitrous oxide via an oscillatory ventilator. He noted hypoglycemia. Perfusion was noted as good with capillary refill one second. The chest appeared clear, and Jael moved spontaneously. Dr. Declue's diagnosis was: Severe metabolic acidosis Lactic acidosis Respiratory failure Gram positive cocci sepsis Pulmonary hypertension On December 1, 2006, three days post-birth, a cranial neuro-sonogram was performed. At that time, hospital Radiologists Steen Mandel, M.D., and John Rasmussen, M.D., read the sonogram as normal. On December 4, 2006, four days post-birth, Jael underwent a lumbar puncture. His cerebrospinal fluid showed a white blood count of 185, reference 0-5. The consulting neurologist diagnosed Strep Group B sepsis and meningitis. On December 10, 2006, a second cranial ultrasound was done. This second sonogram was read by Michael Shaw, M.D. He recorded that ventricular size and configuration was normal, with no evidence of germinal matrix or inter-ventricular bleed, but the ventricles appeared slightly (not significantly) more prominent than the prior December 1, 2006, study. On December 15, 2006, an MRI was performed and interpreted by radiologist Elaine Engleman, M.D. Her impression was: Extensive cystic encephalomalacia[12] involving both cerebral hemispheres throughout all vascular territories. There is slightly less extensive involvement in the posterior cerebral artery territories. There is preservation of parenchyma involving the basal ganglia, thalami and brainstem. Jael was discharged from St. Joseph's on January 5, 2007, with a diagnosis of: Prematurity at 34 weeks gestational age Respiratory distress syndrome Neonatal depression Severe metabolic acidosis Patent ductus arteriosis Cholestasis Lactic acidosis Respiratory failure Meningitis that was treated for three weeks and supraventricular tachycardia On August 1, 2007, another MRI was performed on Jael's brain and interpreted by Radiologist, James Hanner, M.D. His report opined: FINDINGS: There is extensive cystic encephalomalacia seen throughout in the frontal, temporal, and parieto-occipital lobes associated with significant ex vacuo enlargement of the occipital horns, bilaterally, left greater than right. There is some sparing of the medial frontal accident, hemorrhage, or extra-axial fluid collection is identified. The hindbrain structures are normal without developmental anomaly. There is wallerian degeneration of the cerebral peduncles bilaterally. IMPRESSION: Extensive supratentorial systic encephalomalacia associated with ex vacuo enlargement of the lateral ventricles and occipital horns, left greater than right. The volume loss has progressed when compared to the earlier examination. Despite some variant medical testimony, across all experts, to the effect that Jael was probably infected with Group B-strep from his mother before labor, during labor, or during delivery, Intervenors collectively submit that, ". . . Jael Sutton did not suffer from oxygen deprivation during labor or delivery . . ." (proposed finding of fact 54 of Intervenors' proposed final order). Due to this admission and the other parties' similar positions, it is not necessary for the undersigned to resolve when labor began; when "active" labor began; when the amniotic fluid began to leak; or even whether Jael's delivery by C-section undermines any medical opinions rendered herein in terms of acquisition of bacterial infection during Jael's passage through the birth canal. Therefore, the issue is further narrowed to whether or not Jael suffered from oxygen deprivation "occurring in the course of . . . resuscitation in the immediate postdelivery period . . . which render[ed] the infant permanently and substantially mentally and physically impaired." The parties presented medical experts in a variety of fields who offered their opinions, within reasonable medical probability, as to what happened to Jael and within which periods of time. All experts testified by deposition, but the undersigned has had the benefit of viewing DVDs of the depositions of Dr. Robert Zimmerman and Dr. Mary K. Edwards- Brown. Michael Duchowny, M.D., a Florida-licensed physician, is a professor of neurology at the University of Miami Leonard Miller School of Medicine; a clinical professor of neurology at Florida International University College of Medicine; and senior attending physician at Miami Children's Hospital. He is board- certified in pediatric neurology, with special competence in child neurology, clinical neurology, and clinical neuro- physiology. He performed a medical examination of Jael on February 17, 2010, and reviewed the mother's and the child's medical records, including the ultrasound study of December 1, 2006, and the MRI scans of December 15, 2006, and August 1, 2007. He did not read the December 10, 2006, ultrasound. Dr. Duchowny's testimony confirmed, without equivocation, that Jael is tragically and profoundly permanently and substantially mentally and physically impaired. It was his ultimate opinion that Jael did not suffer a birth-related neurological injury due either to mechanical injury or deprivation of oxygen supply or blood flow to the brain within the statutory period. He reached this conclusion because, in his expert opinion, no impairment occurred during the statutory period. Dr. Duchowny did not see, on the films he reviewed, any sign of damage during the statutory period. He diagnosed the cause of Jael's multiple problems as meningitis, and opined, in pertinent part, as follows: Q: . . . Do you have an opinion, within a reasonable degree of medical probability, whether or not he had an impairment that was acquired during labor, delivery or post- delivery? . . . A: If we're going to define it as impairment, I would say, no. Q: So what you're saying is that no damage was done, even if he had the infection, right? A: I am saying that, because I don't see any indication of damage at that time. Q: . . . You don't find him -- you don't find that he had a mechanical injury; is that right? A: That's correct. Q: And you don't find that there was deprivation of blood flow or oxygen, correct? A: That's correct. (Depo. 33-34). Dr. Duchowny testified concerning the meningitis diagnosis as follows: A. . . . Meningitis means -- it specifically refers to a bacterial infection of the membranes covering the brain. These are anatomically called the meninges, so that in its strictest sense, a meningitis is an infection and an inflammation of the membranes covering the brain, but, in point of fact, it spreads from the membranes usually directly to the brain itself, and that's where the problems come in. . . . * * * I don't believe that Jael's brain damage was due to either a mechanical injury or oxygen- -deprivation of oxygen supply or blood flow to the brain. I think that Jael's brain damage is primarily due to the effects of meningitis. * * * . . . the MRI findings are consistent with severe bacterial meningitis, in this case, Group B strep meningitis. The findings, also, to me, are supported by the fact that if one looks at the clinical course of Jael, there really is no specific hypoxic or ischemic event that would be in the records to explain the findings on neuroimaging and the neurologic outcome. . . . So although one can see findings on MRI that are consistent with hypoxic and ischemic damage, for example, cystic encephalomalacia, if one looks at the totality of the picture, meaning, put the clinical events together with the neuroimaging findings and the neurologic examination, I think that this pattern of evidence all supports the fact that Jael's neurologic damage is primarily due to bacterial meningitis. (Depo. 20-26). Michael Katz, M.D., is a pediatric neurologist, and board-certified in pediatrics, pediatric neurology, and neuro- developmental disabilities. He is based at Hackensack University Medical Center, New Jersey. He examined Jael on September 14, 2009, and testified on behalf of Petitioners by a November 19, 2010, deposition. He considered the "resuscitative period" in Jael's case to be "until the Apgar is normalized at five minutes when the Apgar was seven," and opined that the injury to Jael's brain did not take place in that period. He concluded that the cause of Jael's permanent and substantial mental and physical impairment was a "strep B meningitis." More specifically, Dr. Katz testified: Q: In your opinion within a reasonable degree of medical probability, was there any injury to Jael Sutton's brain caused by oxygen deprivation occurring during labor or delivery or resuscitation in the immediate postdelivery period? A: No. * * * Q: What significant history did you elicit that leads you to reach that diagnosis and opinion of causation? * * * A: . . . First is that Mom was group B strep positive. The second was that mom had premature ruptured membranes. . . . Jael had a clinical deterioration, essentially went into shock and required pressors and resuscitation. And the ultimate, and probably most important fact, is when he was finally clinically stable, we were able to do a lumbar puncture, and we drew out group B strep spinal bacteria in his spinal fluid, along with a diagnosis of group B strep meningitis. (Depo. 11-12). Robert Zimmerman, M.D., is a professor of radiology of the division of neurosurgery at Children's Hospital of Pennsylvania. He has been chief of pediatric neurology there since 1989. He is licensed to practice medicine in Pennsylvania, New Jersey, and Israel, and has been board- certified in diagnostic radiology and neuroradiology. In Dr. Zimmerman's opinion, after having read the two ultrasounds (December 1, 2006 and December 10, 2006) and the two MRIs (December 15, 2006 and August 1, 2007) performed on Jael, the first ultrasound was abnormal and clearly showed decreased oxygen (hypoxia) and decreased blood flow (ischemia), and the remaining studies showed advancing stages of brain injury (the brain turning to "swiss cheese") due to lack of oxygen and lack of blood flow. This was cystic encephalomalacia. He acknowledged that a hypoglycemic event could possibly have contributed to the situation, but he perceived no traumatic event and no mechanical injury. As to timing, Dr. Zimmerman indicated that the progression of the ischemia possibly started intrauterine, even before delivery, but the best he could place a point of injury was, "in and around the time that the kid was being delivered, the day of birth or a little earlier, or perhaps right after birth, but somewhere in that vicinity . . . . Sometime around the 28th." He believed that hypoxic ischemia caused the holes in Jael's brain, and that the condition first began to develop more than 1-6 days before the first ultrasound of December 1, 2006. He indicated that sepsis was probably the cause of the oxygen insufficiency and ruled out bacterial meningitis, but he ultimately conceded he would defer those decisions to a clinician, such as a pediatric neurologist. Dr. Zimmerman's opinion is diminished by his vascillations on placing the time of injury and his disclaimers, and by there being no indication he reviewed any medical information on Jael other than the four films. Mary K. Edwards-Brown M.D., is a neuro-radiologist with a subspecialty interest in pediatric neuroradiology. She is board-certified in radiology and in neuroradiology. She is also a full professor of radiology at Indiana University and practices at Riley Children's Hospital, Riley, Indiana. She also teaches medical professionals at many levels, including preparation for specialty boards. Dr. Edwards-Brown also reviewed the history and all four of Jael's films (December 1, 2006; December 10, 2006; December 15, 2006, and August 1, 2007). She, unlike Dr. Zimmerman, considered the first ultrasound to be normal. In the December 10, 2006, MRI, she found non-specific brain damage by tissue destruction. In the December 15, 2006, MRI, she, like Dr. Zimmerman, found massive brain damage and diffused cystic encephalomalacia, which she also considered non-specific. According to Dr. Edwards-Brown, the most common cause for this condition is that insufficient oxygen was getting to the brain, which can occur by not enough oxygen being present, by infection, or by trauma. Dr. Edwards-Brown ultimately opined that: . . . [Jael] was suffering from a profound meningitis, which caused the pattern of hypoxic-ischemic encephalitis -- encephalomalacia. And it was a mechanism of meningitis that induced hypoglycemia and brain injury that happened after this child was born. * * * Given that Jael was born with Apgars of 3 and 7, and a pH of 7.2, those are signs that -- most children who have those Apgars and that non-acidotic pH at birth generally do very well, and certainly don't have a pattern of injury as we've seen here. And given the fact that the ultrasound of December 1st looks normal to me it is my opinion that this injury occurred after the time of birth [November 28, 2006]. And most likely, the bulk of the injury occurred after December 1st, that first ultrasound that looks so very normal. Doctors Duchowny, Katz, and Edwards-Brown concurred, in varying terminology, that Jael's situation was a slow- evolving brain injury not consistent with a sentinel hypoxic insult occurring during resuscitation in the immediate postdelivery period. Dr. Zimmerman also could not point to any specific sentinel event. Elias Chalhub, M.D., testified by a deposition taken November 26, 2010. Dr. Chalhub is board-certified in pediatrics, psychiatry, and neurology, but he has not done research or published in over 20 years. Based on a records review, and without examining Jael, he testified that Jael's Group B strep sepsis occurred within an hour and a half of birth when the child was in the NICU in septic shock. He noted the records of Jael's pale, blue color (cyanosis) but also agreed that the baby had reasonably good Apgars and normal cord gas before transfer to the NICU. He stated Jael deteriorated rapidly after the good Apgars, which, in his opinion, is consistent with septic shock. However, Dr. Chalhub conceded that the baby was stable at five minutes after birth; that there was nothing in the nursing notes at 1:00 p.m., on December 28, 2006, that alerted to a problem; that there was no indication about an inability to get blood pressures before 1:20 p.m.; that thereafter, the baby became hypotensive, and that the first abnormal blood pressure reading was at 1:52 p.m., an hour and 36 minutes after birth. Dr. Chalhub opined that between birth at 12:16 p.m. and 2:00 p.m., on November 28, 2006, there was sepsis and decreased perfusion that resulted in Jael's injury. He was satisfied that the Group B-strep, which may have been acquired before labor or during birth, resulted in sepsis and that the brain injury occurred before the sepsis became meningitis, but conceded the meningitis, which came later, could have contributed to Jael's brain damage. He stated he did not believe that hypoglycemia, detected at 1:20 p.m., contributed to the brain damage. That said, Dr. Chalhub, in asserting compensability, also set the "immediate postdelivery period in a hospital" at an arbitrary "six hours from birth," without even relating the six hour period to acts of "resuscitation" or to the facts of this case. He claimed "six hours" would be what neonatologists would say constituted the "immediate post-resuscitative period," but he quoted no neonatal authority for the proposition. Clearly, his arbitrary concept is not the understanding of the greater medical community as evidenced by the other testifying physicians, nor is it the status of Florida law.13 Accordingly, I have discounted his opinion that the oxygen deprivation occurred during the statutory period. It might have been helpful to have heard testimony from a perfusionist or neonatologist, but herein radiologists' opinions have been compared with each other and neurologists' opinions have been compared with those of other neurologists. Dr. Chalhub's opinion is less persuasive than some other witnesses for the reasons related supra. The opinions of the physicians who actually examined Jael are more persuasive than those of physicians who only did a records review. Finally, the logic and reasoning of all experts have been compared and weighed and one common theme appears: whether characterized as "sepsis" or "meningitis," the Group B-strep resulted in a plethora of diagnoses, culminating in ultimate brain cell death. Within these parameters, and upon the credible evidence as a whole, it is found that more likely than not, Jael did not suffer brain injury due to oxygen deprivation that occurred during labor, delivery or resuscitation in the immediate postdelivery period in a hospital. Rather, it is more likely than not that Jael suffered brain damage after he was initially stabilized and after he was removed to the NICU due to his premature birth status. Based on the credible evidence as a whole, it appears that wherever and whenever Jael was intubated, he probably was not intubated until after the Apgars and after the immediate resuscitative period ended. Due to Jael's "good cry" immediately after delivery, the increasingly good Apgars, the good cord blood report, and the fact that there was no indication of oxygen deprivation to the brain at least until the first ultrasound of December 1, 2006, three days after delivery, the more compelling evidence supports a finding that Jael did not suffer from oxygen deprivation during labor or delivery and did not suffer injury to the brain during that period, either. As to his intubation in NICU, it is as likely that his airway was being protected by intubation as it is that he suffered any problem breathing or any oxygen deprivation before 2:00 p.m., on November 28, 2006, when he went into shock. Accordingly, the record fails to support a finding that there was an hypoxic or ischemic event during the statutory period (labor, delivery, or resuscitation in the immediate postdelivery period in a hospital). Alternatively, it is conceivable, but not proven, that Jael suffered oxygen deprivation at some unspecified point in time which occurred after 2:00 p.m., on December 28, 2006, and after he had arrived in NICU, which still is not within the statutory period. Since both the oxygen deprivation and the injury cannot be placed in the statutory period, Petitioners cannot prevail.
Findings Of Fact Zacari was born on April 2, 2011, at Plantation General Hospital located in Plantation, Florida. Zacari weighed eight pounds two ounces at birth. NICA retained Donald Willis, M.D., as it medical expert specializing in maternal-fetal medicine. In an affidavit dated September 6, 2013, Dr. Willis opined as follows: It is my opinion that labor was indicated at 39 weeks with no fetal distress during labor. Spontaneous vaginal birth resulted in a healthy baby with Apgar scores of 9/9. The newborn hospital course was uneventful. As such, it is my opinion 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. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post- delivery period in the Hospital, then accordingly, there was no causal event which would have rendered Zacari Porter permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Zacari on July 17, 2013, and reviewed his medical records. In an affidavit dated September 4, 2013, Dr. Duchowny opined as follows: It is my opinion that, in summary, Zacari’s neurological examination is significant only for expressive language delay. In contrast, he has well-developed motor abilities, both gross and fine motor skills and has no focal or lateralizing findings. I had an opportunity to review medical records that were sent on June 27, 2013. The records document a relatively uncomplicated perinatal and postnatal course without evidence of either mechanical injury or oxygen deprivation to the brain or spinal cord. The record review together with today’s neurological exam reveals developmentally appropriate motor function and only a mild expressive language delay which suggest that Zacari does not have either a substantial mental or physical impairment. I therefore believe that Zacari should not be considered for inclusion within the NICA program. As such, it is my opinion that Zacari is not permanently and substantially mentally impaired nor is he permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Zacari Porter. A review of the file does not show any opinion contrary to the opinions of Dr. Willis and Dr. Duchowny that Zacari does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma during labor, delivery, or the immediate post-delivery period are credited.
The Issue The issues to be determined in this proceeding are whether Steven Pliskow, M.D. (Dr. Pliskow), provided notice as required by section 766.316, Florida Statutes, and whether Palms West Hospital, Limited Partnership, d/b/a Palms West Hospital (Palms West Hospital) provided notice as required by section 766.316.
Findings Of Fact Desiree Williams first presented to Dr. Pliskow on November 28, 2011, for a prenatal visit. She was 34 weeks' gestation. When she arrived at Dr. Pliskow's office, Mrs. Williams was given some forms to fill out by the receptionist. She filled out, signed, and dated a Patient Registration Form and a Policies and Consent form and returned them to the receptionist. The forms were initialed by the receptionist. After she returned the forms to the receptionist, Mrs. Williams returned to the waiting room, while her chart was being prepared by Dr. Pliskow's medical assistant, Marlena Lovely. Ms. Lovely took Mrs. Williams to the triage area. Mrs. Williams remembers Ms. Lovely because Ms. Lovely was wearing unusual pink tye-dyed shoes. While in the triage area, Ms. Lovely gave Mrs. Williams a copy of the brochure published by the Florida Birth-Related Neurological Injury Compensation Association (NICA brochure). She also gave Mrs. Williams the Patient Information Verification form, the Prenatal Risk Screening form, and the Prenatal Genetic Screening form for Mrs. Williams to fill out. Mrs. Williams filled out the forms. The Prenatal Information Verification form contains the following statement: The first OB visit is an important time to insure that you start you prenatal care informed and confident that you are making the right decision regarding your pregnancy. As we progress together through the pregnancy, we will discuss many aspects of the prenatal care and delivery. Please confirm that you have received the following information and that all your questions have been answered. After this statement, there is a list of items and beside each item is a blank for the date and a blank for the patient's initials. The first item listed is the NICA brochure. Mrs. Williams placed the date, "11/28/2011," on the blank for the date and placed her initials on the blank designated for the patient's initials. After filling out the forms in triage, Mrs. Williams was taken to Dr. Pliskow's office, where Dr. Pliskow discussed the pertinent items on the Prenatal Information Verification form with Mrs. Williams. Dr. Pliskow recalls seeing the NICA brochure in Mrs. Williams' lap while he was discussing the items on the form with Mrs. Williams. Dr. Pliskow initialed the Prenatal Information Verification form after he discussed the items with Mrs. Williams. After his discussion with Mrs. Williams, she was taken to the examination room, where Dr. Pliskow examined her. Mrs. Williams denies having received the NICA brochure during her visit to Dr. Pliskow's office on November 28, 2011. However, based on the normal routine and practice in Dr. Pliskow's office, it is more likely than not that Mrs. Williams did receive a copy of the NICA brochure from Dr. Pliskow's office on November 28, 2011. The routine practice in Dr. Pliskow's office for a first time obstetric patient was to have the receptionist give the patient the Patient Registration form and the Policies and Consent Form to fill out while the patient was in the waiting room. After the patient returned the forms to the receptionist, the receptionist would initial the forms and give them to Dr. Pliskow's medical assistant to compile a chart. The medical assistant would then take the patient to the triage area where the patient would be given the Prenatal Risk Screening form, the Prenatal Genetic Screening form, and a Prenatal Information Verification form to complete. The medical assistant would give the patient the NICA brochure while the patient was in triage. After triage, the patient would be taken to see Dr. Pliskow in his office, where Dr. Pliskow would discuss the items listed in the Prenatal Information Verification form with her. He would also discuss the NICA brochure and advise the patient that he was a participating physician. After this discussion, the patient would be taken to the examination room to be examined by Dr. Pliskow. Mrs. Williams presented to Palms West Hospital on December 19, 2011, and pre-registered for her delivery. On December 29, 2011, Mrs. Williams presented again to Palms West Hospital for a biophysical profile. Palms West Hospital did not provide Mrs. Williams with notice as to the limited no-fault alternative for birth-related neurological injuries under the Plan on December 19, 2011, or December 29, 2011. Palms West Hospital was not prohibited or constrained from providing notice to Mrs. Williams of the Plan on either December 19, 2011, or December 29, 2011. On January 3, 2012, Mrs. Williams presented to Palms West Hospital after a spontaneous rupture of membranes. When she arrived at the hospital, she was given some forms to complete and sign. One of the forms that she was given and which she signed and dated was the Acknowledgement of Patient's Receipt of the Florida Birth-Related Neurological Injury Compensation Plan Brochure. The form stated: I ACKNOWLEDGE THAT I HAVE RECEIVED THE OFFICIAL INFORMATION BROCHURE OF THE Florida Birth-Related Neurological Injury Compensation Plan. I acknowledge that any questions I may have had with regard to the operation of this plan and the potential benefits available to me have been answered to my satisfaction. I hereby consent to the rendering of all necessary medical services including having received the official information NICA brochure which describes my rights and limitations under that plan. I acknowledge and understand that I may contact the Florida Birth-Related Neurological Compensation Association about the details of the plan. Mrs. Williams' signature on the acknowledgement form was witnessed by Robin Torres, a registered nurse in the labor and delivery unit at Palms West Hospital. Part of Ms. Torres' duties and routine practice at Palms West Hospital is to give incoming obstetrical patients a copy of the NICA brochure prior to her signing her name to the acknowledgement form as a witness. Ms. Torres also routinely manually inputs data into the hospital computer showing that the NICA brochure was given to the patient. The records of Palms West Hospital show that on January 3, 2012, Ms. Torres entered data into the hospital computer system indicating that Mrs. Williams was provided a copy of the NICA brochure on that date. Mrs. Williams denies being given a copy of the NICA brochure when she presented to Palms West Hospital on January 3, 2012, but concedes that she did not read the forms that were provided to her on that date. The greater weight of the evidence demonstrates that Mrs. Williams was given a copy of the NICA brochure by the staff of Palms West Hospital on January 3, 2012. At the time that Mrs. Williams presented to Palms West Hospital on January 3, 2012, she could not be transferred to another hospital because her membranes had broken and she was in labor.
Findings Of Fact Noble was born on May 4, 2017, at Bayfront Health St. Petersburg. Noble was a single gestation, weighing over 2,500 grams at birth. With respect to Noble’s birth, obstetrical services were provided by Prashanti Logeswaran, M.D., a NICA participating physician, in the course of labor, delivery, or resuscitation in the immediate post-delivery period. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Noble’s medical records 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 June 18, 2018, Dr. Willis set forth the following: In summary, what appeared to be an uneventful vaginal birth resulted in newborn depression with Apgar scores of 3/4/6. Bag and mask ventilation was required at birth, followed by CPAP in the nursery. ABG at one hour after birth was consistent with acidosis. The pH was 7.18 with a base excess of -11. Seizure activity developed within the first 24 hours after birth and was confirmed by EEG. MRI on DOL 3 had findings consistent with ischemic brain injury. There was no apparent obstetrical event that resulted in oxygen deprivation during labor and delivery, but oxygen deprivation did occur in the post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis affirms in his affidavit, dated September 4, 2018, the above-quoted opinion based upon his education, training, experience, and to a reasonable degree of medical probability. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Noble’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained information regarding Noble’s developmental trajectory from Petitioners, and conducted an IME of Noble on May 23, 2018. Dr. Sigurdardottir’s affidavit, attached to NICA’s Motion, provides in pertinent part, as follows: Based upon my education, training and experience, it is my professional opinion, within a reasonable degree of medical probability that although there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, he has made an excellent recovery and has minimal delays in development at this time. He has no delays in mental abilities. A review of the file reveals that no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
Findings Of Fact Allison Paige Blackshear was born on July 20, 2009, at University Community Hospital located in Tampa, Florida. Allison weighed 3,900 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Allison to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report: She [Mrs. Blackshear] was admitted to the hospital at term for elective repeat Cesarean section delivery. She was not in labor. Fetal heart rate (FHR) monitor prior to delivery shows a normal baseline fetal heart rate of 130 bpm and a reactive pattern. The FHR monitor tracing prior to delivery does not suggest fetal distress. The operative report indicates that the repeat Cesarean delivery was “uncomplicated.” Birth weight was 8 lbs 9 oz’s (3,900 grams). The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. The baby was taken to the normal nursery. The baby breast fed twice and was in apparent good health until four hours after birth. While in the mother’s arms, the baby stopped breathing and turned blue. The baby was taken to the NICU for evaluation and management. Persistent apnea required intubation. Seizure activity was noted about 24-hours after birth. EEG confirmed seizure activity. Head ultrasound was negative. MRI on DOL 2 showed an extensive acute ischemic infarction in the area of the left middle cerebral artery. In summary, there was no fetal distress noted by FHR monitor prior to delivery. Delivery was by uncomplicated repeat Cesarean section. The newborn was not depressed at birth with Apgar scores of 9/9. About four hours after delivery, apnea developed, which was followed by seizure activity. MRI confirmed an acute cerebral infarction. The cerebral infarction apparently developed several hours after birth and was not related to any obstetrical event. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during delivery or the immediate post delivery period. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Allison and to review her medical records. Dr. Fernandez examined Allison on April 10, 2012. In the affidavit attached to the Motion for Summary Final Order, Dr. Fernandez opined as follows: I examined Allison on April 10, 2012. At that time, she was 2 years and 9 months old. Based on my examination of her and my review of the available records at that time, I concluded that Allison had a permanent and substantial motor (or physical) impairment. I also stated that she was likely to experience substantial mental (cognitive and behavioral) impairment due to her large perinatal stroke and associated left hemisphere atrophy. In addition, it was my opinion that the cause of Allison's perinatal stroke was unclear, but it was not due to an acute obstetrical event that caused systemic oxygen deprivation during delivery. See, Independent Medical Examination report dated April 10, 2012, a true and accurate copy of which is attached hereto as Exhibit A. Subsequently, on May 12, 2012, I prepared an addendum to my initial report. In that addendum, I explained that it was my opinion that irrespective of the timing of Allison's stroke, it was not due to systemic oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period and as result did not meet the criteria for coverage under the NICA plan. Allison's stroke was due to reduction in left middle cerebral artery blood flow. In addition, Allison was stable immediately after birth and had Apgar scores of 9 and 9, and she did not need or require any resuscitation in the delivery room or immediately thereafter and remained stable until approximately four hours after her birth, at which point the first apneic episode occurred. See, Addendum to The Independent Medical Examination of April 10, 2012, a true and accurate copy of which is attached hereto as Exhibit B. It remains my opinion today that Allison does not qualify for coverage under the NICA plan as her stroke was not caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period and because the [sic] was no need for any active or ongoing resuscitation after delivery. Her first apneic episode did not occur until approximately four hours after birth, well after it had been determined that she was in good and stable condition. Irrespective of the timing of Allison's stroke and resulting brain injury, it is my opinion that she does not qualify for coverage under the NICA plan because she does not have a permanent and substantial mental impairment. Although I indicated in my initial report that substantial mental impairment was likely, I also noted that Allison's early speech delay (which some times can be predictive of substantial mental impairment) was improving. Subsequent to my initial report, I was provided additional medical records reflective of Allison's growth and development since the time that I examined her. In addition, I was provided the deposition transcripts of Allison's parents, Matt and Stacie Blackshear. Having reviewed this additional information, it is clear that Allison has developed and progressed much better than expected and currently does not have a permanent or substantial mental impairment. 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 delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Fernandez’s opinion that, as there was no need for resuscitation at the time of delivery and Allison was stable until approximately four hours of age, the NICA criterion for brain injury to be caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post-delivery period is not met. Moreover, there are no contrary opinions filed to Dr. Fernandez's opinion that Allison currently does not have a permanent or substantial mental impairment. Dr. Fernandez’s opinion is credited.
The Issue At issue is whether Elizabeth Ann Adams, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact April D. Adams and Jeffrey Floyd Adams are the natural parents of Elizabeth Ann Adams, a minor. Elizabeth was born a live infant on September 17, 2004, at St. Luke's Hospital, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Elizabeth's birth by Michelle McLanahan, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Sufficient notice of participation in the Florida Birth-Related Neurological Injury Compensation Plan on the part of Michelle McLanahan, M.D., and St. Luke's Hospital was provided to April D. Adams. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."3 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioners were of the view that Elizabeth suffered a subgaleal hemorrhage4 (a bleed) and resulting subgaleal hematoma5 (a collection of blood within the tissue) between the skull and scalp (outside the brain) resulting from the use of the vacuum extractor during delivery, and that the hemorrhage was substantial enough to result in hypovolemia, and ultimately hypoxic-ischemic brain injury.6 (Petitioners' Memorandum Regarding Final Order, pp. 5-7). In contrast, NICA was of the view that the record failed to support the conclusion that Elizabeth's brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period and that, regardless of the etiology of her brain injury, Elizabeth was not permanently and substantially mentally and physically impaired. Intervenor expressed no position on the issue. Elizabeth's birth and immediate newborn course At or about 11:24 a.m., September 16, 2004, Mrs. Adams, with an estimated delivery date of September 20, 2004, the fetus at 39 3/7 weeks' gestation, and a history of mild pregnancy induced hypertension (PIH), was admitted to St. Luke's Hospital for induction of labor. There, initial physical examination revealed her membranes were intact, no vaginal bleeding, and external fetal monitoring revealed a reassuring fetal heart rate baseline of 150-160 beats per minute, average long term variability and no decelerations. At or about 12:40 p.m., an IV was started for hydration, and at 3:14 p.m., Mrs. Adams' membranes spontaneous ruptured, with clear fluid noted. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at -3 station. In the interim, external fetal monitoring was reassuring for fetal well-being. Thereafter, Cytotec ("miso[prostol]") was placed vaginally to soften the cervix (for induction of labor). Mrs. Adams' progress continued to be monitored, and at 6:10 p.m., vaginal examination revealed the cervix unchanged. However, at 6:58 p.m., vaginal examination revealed some change, with the cervix at 3-4 centimeters, effacement at 70 percent, and the fetus at -3 station, and an intrauterine pressure catheter (IUPC) was placed to measure the force of contractions during labor. Fetal monitoring continued to be reassuring for fetal well-being, with a fetal heart rate baseline of 145-160 beats per minute, average long term variability, and no decelerations. At 8:16 p.m., Pitocin infusion (for labor induction) was started, and at 8:37 p.m., contractions were noted at 1-2 minutes, and vaginal examination revealed the cervix at 5 centimeters dilation, effacement at 70 percent, and the fetus at -1 station. Fetal monitoring continued to be reassuring, with a baseline in the 150s. Mrs. Adams' progress continued, albeit slowly, with a prolonged second stage of labor (the expulsion/pushing stage) lasting more than two and a half hours,7 and at 5:03 a.m., September 17, 2004, Elizabeth was delivered vaginally, with vacuum assistance (three attempts). Of note, approximately three hours before delivery, recurrent variable decelerations and a mild baseline tachycardia developed, and approximately eight minutes before delivery severe, repetitive variable decelerations developed which prompted the vacuum-assisted delivery. At delivery, Elizabeth was dried, stimulated, and bulb-suctioned, otherwise no resuscitation measures were required. Apgar scores were good (8 and 9, at one and five minutes).8 Physical examination at 5:10 a.m., revealed no abnormalities, with the exception of an elevated temperature (102.7, rectal) and skin color (acrocyanosis was noted).9 By 5:40 a.m., skin color was noted as pink. Elizabeth roomed-in at her mother's bedside, and was routinely monitored by hospital staff. Of note, Elizabeth's temperature remained elevated until 1:30 p.m., when it was documented at 98.1 (auxiliary). In the interim, at 11:58 a.m., with temperatures of 100.0 (auxiliary) and 100.7 (rectal), complete blood count (CBC) and blood cultures were drawn. The CBC results revealed an elevated white blood count. Under the circumstances, the attending physician (Dr. Schwartz) noted, at 4:34 p.m., "[w]ill repeat CBC in a.m. . . . [w]ill not st[art] ABX unless temps elevated again." Blood culture was subsequently reported as negative. It also may be noted, although not shown to be clinically significant, that Elizabeth's behavior was, starting at 6:10 a.m., periodically described as "irritable" and "fussy." (Exhibit 18, pp. 22-24). Otherwise, Elizabeth's newborn stay was without incident, with normal newborn examinations, breastfeeding well, and voiding and stooling appropriately, until 8:35 p.m., when the attending nurse made the following entry in the records: Assumed care of infant. Infant/Mom ID # checked/verified. Physical assessment done and noted. Infant noted to be jittery and irritable. Mom states that infant has not breastfed since 1700-1730. Temp stable now at 98.8. Infant noted to settle after wrapping. Placed in mother's arms. Mom will breastfeed infant shortly. Will eval infant's next feeding. Thereafter, at 8:42 p.m., the attending nurse made the following entry: Called into room by parents. States that infant shreiked then arched her back and turned purple. Upon enter room infant's color noted to be dusky with purple lips. Left eye noted to be turned in and rt eye gazed. Unwrapped and body noted to be modled but no shaking present at this time. Infant taken to nicu for immediate evaluation. Elizabeth's subsequent care was summarized in her Discharge Summary, as follows: . . . Nursing brought the infant to this Special Care Nursery and it was felt that the infant was having seizure activity. At this point a complete septic workup was performed. The infant was placed on IV antibiotics and further cultures including spinal fluid were sent. The workup was initially benign; however, a CT scan [on September 18, 2004] was within normal limits except that J. Norman Patton, M.D., Division of Cardiovascular Diseases, Internal Medicine, could not completely rule out some mild evidence of inflammatory response in the brain . . . . The CT scan of September 18, 2004, was done to rule out a bleed as the cause of Elizabeth's seizures, and was read as follows: CT head without and with contrast. Iodinated contrast was given per protocol. Nonionic contrast was utilized. Small subgaleal hematoma in the biparietal locations. The intracranial contents appear unremarkable. Specifically, there is no evidence for parenchymal/extra-axial hemorrhage, nor pathologic enhancement. The ventricle volume is within normal limits, and without midline shift. A subgaleal hematoma or hemorrhage is a bleeding between the skull and the skin on the outside of the skull (scalp), and not within the brain. (Exhibit 18, pp. 15, 16, and 18). The Discharge Summary continued, and documented Elizabeth's care as follows: At this point acyclovir was also added to the antibiotic regimen. The CSF PCR was negative, but surface cultures revealed positive HSV [herpes simplex virus] in the rectal swab, although negative in the oropharynx. For this reason the infant was continued on acyclovir for a total of 21 days. After negative cultures the ampicillin and gentamicin were discontinued. The infant also required mild oxygen in this period and was placed on 1.5 liters 30-40%. Over the next several days this was able to be discontinued. Dr. Gamma, Pediatric Neurology, was involved in the patient's case and consulted on a regular basis. EEG was consistent with seizure activity. The infant was on phenobarbital and later secondary to continued occasional seizures, was started on Cerebyx. The goal was to get this infant's phenobarbital level to between 20 and 30; however, the infant metabolized the phenobarbital very well and despite increasing the dose, the phenobarbital level remained in the 19-20 range. Eventually the Cerebyx was discontinued and the infant is discharged home only on phenobarbital. The infant initially was fed fairly slowly, but by the end of admission was eating well and gaining weight steadily. The infant was ready for discharge on 10/09/04 following 21 days of acyclovir and at this point the infant had a phenobarbital level of 19.3 and a weight of 3940 grams or 8 pounds 11 ounces. The parents have been very involved with the infant, visited often, and have demonstrated good care for this baby. The infant's workup also includes urine for amino acids, which was within normal limits. Liver function tests were within normal limits. Screening CBCs were within normal limits. Ammonia was normal at 36. Urine organic acids were within normal limits . . . . An MRI performed on September 22, 2004, revealed: . . . restricted diffusion in the left occipital lobe, both parietal and frontal lobes, worse on the left, consistent with cytotoxic edema as seen in infarction, secondary to ischemic and or sequelae of severe meningoencephalitis The ventricle volume is within normal limits, and without midline shift. A head ultrasound performed on September 30, 2004, was normal and reported, as follows: Using the anterior fontanelle as an acoustic window, routine coronal and sagittal images were obtained. No evidence for intracranial or germinal matrix hemorrhage. Ventricles are not dilated and appear normal in shape and position. No obvious parenchymal abnormality. Elizabeth was discharged on October 9, 2004. Physical examination on discharge was noted in her Discharge Summary, as follows: Physical exam on discharge revealed a discharge weight of 3940 grams, length of 53 cm, and head circumference of 35.5 cm. The infant was well-developed, well- nourished, alert, pink non-jaundiced female in no acute distress. HEENT was negative. Anterior fontanelle was soft and flat. Lungs were clear to auscultation in no distress. Heart - Regular rhythm without murmur. Abdomen - Soft, benign and nontender. GU - Normal female. Back - Normal extremities, negative Ortolani, negative bilaterally. Neurologic exam intact. Discharge medication was phenobarbital. Follow-up was recommended with pediatrics, neurology, Early Intervention Program at Shands, and Occupational Therapy and Physical Therapy at Nemours. Discharge Diagnoses were: HSV ENCEPHALITIS - SEPSIS. NEONATAL SEIZURES. TERM FEMALE NEWBORN. Of note, subsequent testing revealed that Elizabeth had not been exposed to the herpes simplex virus (HSV), and the positive HSV result was a false positive. Elizabeth's subsequent development Following Elizabeth's discharge from St. Luke's, she was evaluated by the Early Intervention Program (in October 2004) to resolve whether she qualified for services. At the time, it was felt Elizabeth did not qualify for the program, as her development was within normal limits (WNL) for her age. However, in March 2005, at age 6 months, Elizabeth was reevaluated and found eligible for occupational, speech, and physical therapy services due to motor and language delay. Those services were discontinued by October 2005, since Elizabeth's developmental growth appeared age appropriate. (Exhibit 7). Elizabeth was weaned off phenobarbital at age 15 months (about December 2005) and remained seizure-free until October 13, 2006, when a seizure was noted and she was ultimately transported (after treatment in a local emergency room) to Wolfson's Childrens Hospital (Wolfson's) in Jacksonville. There she was loaded with phenobarbital and Dilantin, the seizures stopped, and on October 15, 2006, she was discharged on maintenance dosage of phenobarbital. However, on October 16th, she had a second seizure and was readmitted to Wolfson's, and then on October 18, 2006, discharged on an increased dosage of phenobarbital. Thereafter, in December 2006, her medication was changed from phenobarbital to Trileptal. (Exhibit 9). Since that time, Elizabeth has experienced seizures on four occasions, three of which she was treated at Wolfson's (April 17-19, 2007; March 19-20, 2008; and July 10, 2008) and the last of which (March 1, 2009) she apparently was treated at home in North Carolina. (Exhibits 9 and 27). Apart from her seizure disorder, Elizabeth's health has been good, and developmentally she continued to make good progress, without the need for any therapies since they were discontinued in October 2005. Currently, Elizabeth attends a regular school program, and was shown to evidence very mild physical impairment and no mental impairment. (See, e.g., Exhibits 16, 17, and 19). Whether Elizabeth suffered a "birth-related Neurological injury" To address whether Elizabeth suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-28), that included the medical records associated with Mrs. Adam's antepartal course, the medical records associated with Elizabeth's birth and subsequent development, the deposition testimony of the delivering obstetrician (Dr. McLanahan), and the deposition testimony of Mr. and Mrs. Adams. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology. Based on his evaluation of the medical records, it was Dr. Willis' opinion that Elizabeth did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period.10 In so concluding, Dr. Willis observed Elizabeth was not depressed at birth; her Agpar scores were normal (8 at one minute, and 9 at five minutes); she did not require any significant resuscitation (only stimulation and bulb- suctioning); and her newborn course was without incident until seizures were noted at 16 hours after birth. As for the subgaleal hemorrhage (the bleed between the skull and the scalp) Elizabeth was shown to have suffered (on the CT scan of September 18, 2004), Dr. Willis agreed it was likely related to the vacuum-assisted delivery. As for the cause of the periventricular hemorrhage (brain injury/stroke) Elizabeth was shown to have suffered (on the MRI of September 22, 2004), Dr. Willis voiced no opinion, and deferred to the expertise of a pediatric neurologist. As for Petitioners' theory of the case, that a subgaleal hemorrhage can progress to cause bleeding within the brain as a result of hypovolemia, Dr. Willis agreed. However, he did not see evidence in this case to suggest such a causative connection. Dr. Willis expressed his opinion, as follows: Q. Tell me why you don't think, if you don't think, that her brain injury is related to the vacuum extraction? A. Well, subgaleal hemorrhage is between the skull and the skin on the outside of the skull, and that's very common with vacuum extractions. But the only way that that can cause a brain injury that I'm aware of is that if so much hemorrhage occurs into that hematoma that the baby becomes hypovolemic and has a stroke due to hypovolemia and low blood pressure related to blood loss. I am not aware that this child had a subgaleal hematoma that was to that extent. (Exhibit 18, pp. 17 and 18). See also Exhibit 18, p. 35. Dr. Duchowny evaluated Elizabeth on September 10, 2008. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that Elizabeth's impairments were likely the result of a meningoencephalitis (an "inflammation of the brain and meninges"11), resulting from a viral infection, albeit not HSV, as opposed to a brain injury caused by oxygen deprivation or mechanical injury occurring during labor or delivery. Dr. Duchowny was also of the opinion that Elizabeth was neither substantially mentally nor substantially physically impaired. (Exhibits 15 and 19). Dr. Duchowny described the results of his evaluation, and the bases for his opinions, as follows: Q. . . . During that examination did you obtain any medical history from Elizabeth's family? A. Yes. Q. What was the history that you obtained? A. I was able to speak to Elizabeth's mother, who was the person, the caretaker, bringing Elizabeth to my office; and she first talked about Elizabeth's seizures, which began shortly after birth, at age sixteen hours; and continued with a total of five seizures during her life. The seizures, although infrequent, were prolonged, and her mother indicated that they lasted between three and five hours, all of which, obviously, resulted in hospitalizations. They were terminated with rescue Diastat in order to stop the status epilepticus. All of Elizabeth's seizures began on the right side of her body but then would generalize to involve both arms and both legs, and most recently Elizabeth has been treated which Trileptal, which apparently has brought the seizures under control. Her mother then went on to describe mild weakness on the right side of Elizabeth's body. She commented that Elizabeth had trouble with fine motor coordination, particularly a pincer grasp, and as a result was a left hander. However, Elizabeth's overall motoric ability was good. She didn't have any specific limitations to her motor abilities, and she was fully functional for her age, which at that time was three years. On a positive note, her mother indicated that her mental development was going well, that there were no delays in her acquisition of speech and language, and that she was in the New Dimensions Preschool Program where she was attending a regular classroom. There has never been any regression of Elizabeth's abilities, and at the time that I evaluated Elizabeth in September, she did not have an ongoing need for either physical or occupational therapy. Otherwise, things were good; she was healthy. She was under the care of Dr. Harry Abrams at Nemours Children's Hospital. She continued to have abnormal EEGs, and her mother commented that her MRI scan of the brain revealed damage, primarily on the left side of her brain. Q. What information, if any, did you obtain regarding her birth? A. Well, again, this was information from Elizabeth's mother, and she told me that Elizabeth was born after a term gestation at St. Luke's Hospital. It was a natural delivery, but with the assistance of a vacuum for the extraction. Elizabeth weighed seven pounds, eleven ounces. She breathed well. She was not a jaundice baby, but that she remained in the NICU at St. Luke's Hospital for a treatment of suspected infection with the herpes simplex virus; so essentially, a herpes simplex encephalitis concern. Q. Thank you. Did you obtain any information with respect to Elizabeth's growth and development? A. Yes. Elizabeth rolled over and sat at six months and then was able to stand at age ten months. She was walking on her own by age thirteen months and began talking in single words between a year and age eighteen months. At the time I saw her she had not yet been toilet trained, but she received all of her immunizations and had no known allergies to medications. She had undergone surgery on two occasions for the ear tubes and, of course, there were the multiple hospitalizations for the recurrent bouts of status epilepticus. Q. Did you perform a physical examination of Elizabeth? A. Yes. Q. What were your findings upon that examination? A. When I saw her, she was actually quite cooperative so, socially, she was very appropriate for her age. She seemed appropriately nourished and developed. Her weight was recorded at thirty-five pounds. There was no abnormalities of her skin, neck and she had no abnormal aspects of her body which suggested a malformation. I noted that her spine was normal. Her head growth was good. She had a head circumference of 49.1 centimeters, which for age three years is within standard percentiles. There were no abnormalities of her heart, her lungs, her abdomen, and her extremities or her peripheral pulses. Q. Did you also perform a neurological examination of Elizabeth? A. Yes. And once again, in terms of her social abilities, she actually was quite good for her age and she was appropriately verbal at her age level. She answered questions, she provided decent verbal content. I thought her speech sounds had a very mild disarticulation, but she knew her colors. She was able to identify parts of her body, and she was able to draw with a pencil using her left hand. No drooling was noted. Examination of her cranial nerves was essentially normal, and her motor examination revealed a well developed, age appropriate amount of muscle strength, bulk of her muscle and muscle tone. I was unable to detect any specific focal weakness, although, again, there was a difference in terms of her fine motor coordination. Even though she used both hands cooperatively, she clearly preferred her left hand, although I was able to demonstrate a pincer grasp bilaterally and reasonably good manual dexterity. Where I did think there was asymmetry had to do with her walking where her left arm would swing in a more prominent fashion on the left compared to the right. Also, there was a tendency actually for both feet to turn in, but this was more prominent, again, on the right side. I thought that Elizabeth's sensory examination was normal and that her gait was appropriate in terms of coordination, despite the asymmetric arm swing. Her deep tendon reflexes were normal and symmetric on both sides of the body, in other words, both arms and legs; and her plantar response, which is a reflex response to stroking the bottom of the feet, was normal. There were no abnormalities of her neurovascular examination, meaning that there were no asymmetries when a stethoscope was placed on her neck, head or over her eyes. The bones of her skull were closed, which was appropriate. Q. Okay. Thank you. Based upon your review of the medical records and documents which you identified earlier, and based upon your examination of Elizabeth and the findings from that examination, were you able to form an opinion as to the nature and extent of Elizabeth's neurological delays or developmental delays, if any, and the etiology of those delays? A. Well, there were some findings on the neurological exam with respect to Elizabeth's motor coordination, and my impression was that these findings were, at best, mild. I would characterize them really as very mild. Q. Specifically, what are those findings? A. The asymmetric arm swing, the establishment of handedness on the left and slightly decreased -- well, really, minimal, minimal change in dexterity. Really, the arm swing and the handedness. Q. And those delays that you've identified and, as I understand it, it's your opinion that you would characterize those as mild? A. Yes. Q. What functional impact, if any, do those mild delays have on Elizabeth based upon your examination of her when you saw her? A. Well, at present I would have predicted that there would be no compromise to her functionality, and that appeared to be the case. Q. With respect to her cognitive development, what were you able to conclude based upon your review of the medical records and your examination of her? A. My examination revealed normal cognitive development; in other words, a level of mental function, which was at age level. So I was, again, not surprised that she was in a regular class at the New Dimensions Preschool. Based upon your review of the medical records, were you able to form an opinion as to the etiology of any of those neurological problems that were identified? A. Well, from a review of the records, I think that there was a strong indication that Elizabeth had had some kind of meningoencephalitis in the first week of life, and I believe that her findings on neurological examination today are related to the previous bout of meningoencephalitis. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial mental impairment? A. I do, and that is that I do not believe that Elizabeth has a substantial mental impairment. Q. Do you have an opinion as to whether or not Elizabeth suffers from a substantial physical impairment? A. I do not believe that Elizabeth has a substantial physical impairment either. * * * Q. . . . You mentioned the motor findings that you described as, at best, mild, or very mild, and you listed the asymmetrical arm swing, and the handedness on the left and the minimal loss of dexterity. I think your findings also included abnormalities in the gait, is that correct? A. Yes, that's true. There was a toe-in position bilaterally, but I didn't see that as a functional problem. She did that, but it didn't seem to contribute to any disability at all . . . . (Exhibit 19, pp. 7-16). When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Willis and Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that the cause of Elizabeth's impairments was most likely a meningoencephalitis, as opposed to a "birth-related neurological injury," and, regardless of the etiology of her impairments, she is not permanently and substantially mentally and physically impaired. See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.").
Findings Of Fact Michael Paul Dally was born on January 2, 2012, at Baptist Medical Center Beaches located in Jacksonville, Florida. Michael weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Michael. In a medical report dated November 10, 2014, Dr. Willis described his findings as follows: Delivery was by spontaneous vaginal delivery. Birth weight was 3,657 grams. The baby was not depressed. Apgar scores were 9/9. The delivery was felt to be uncomplicated. The newborn hospital course was uncomplicated. The baby was discharged from the hospital on DOL 2. In summary, the mother presented in active labor and had an uncomplicated spontaneous vaginal delivery. The baby was not depressed at birth and had an uncomplicated newborn hospital course. 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 Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Michael and to review his medical records. Dr. Fernandez examined Michael on January 21, 2015. In a medical report dated January 25, 2015, Dr. Fernandez opined as follows: IMPRESSION: There is no evidence in the medical record, nor is there evidence based on history for oxygen deprivation during labor, delivery, and the immediate post delivery period. There was no resuscitation necessary in the delivery room. Michael’s neurological development has been normal. His general physical examination and his neurodevelopmental examination are normal. There is no evidence whatsoever for any degree of brain injury, mental or motor disability, or oxygen deprivation during labor, delivery, or the post delivery period. A review of the file in this case reveals that there have been no 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, and Petitioner has no objection to the issuance of a summary final order finding that the injury is not compensable under the plan. Dr. Willis’ opinion is credited. There are no contrary opinions filed that are contrary to Dr. Fernandez’s opinion that there is no evidence of any degree of brain injury, mental or motor disability, or oxygen deprivation in the course of labor, delivery, or the post-delivery period. Dr. Fernandez’s opinion is credited.
