Findings Of Fact Maximilian was born on October 26, 2017, at Winnie Palmer Hospital, located in Orange County, Florida. According to the medical records from Winnie Palmer Hospital, Maximilian weighed four pounds and three ounces, or 1900 grams, at birth.
Findings Of Fact On May 9, 2020, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, otherwise known as the Plan. The baby was born on November 16, 2019, at Shands Lake Shore Regional Medical Center (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records provided by NICA in response to the Petition. In the instant case, NICA has retained Donald C. Willis, M.D., as its medical expert specializing in maternal-fetal medicine. Dr. Willis’s medical report was attached to the Motion as Exhibit 1. Upon examination of the pertinent medical records, Dr. Willis opined: Based on available medical records, there was an apparent obstetrical event that may have resulted in some possible degree of oxygen deprivation during the birth process. However, any oxygen deprivation that may have occurred did not result in identifiable brain injury. It is likely the subdural and subgaleal hematomas resulted from failed vacuum application and not related to brain injury. Additionally, NICA retained Raj Sheth, M.D., as its medical expert specializing in Pediatric Neurology. Dr. Sheth’s medical report was attached to the Motion as Exhibit 2. Upon examination of the pertinent medical records and performance of an independent medical examination, Dr. Sheth opined: Willows’ neurological examination reveals mild gross motor delays for expected age. There was no evidence of generalized hypotonia or hypertonia. The remainder of her neurological examination was normal for age. She was thought to have moderate HIE in the immediate neonatal course. Her head circumference is growing appropriately. PT and OT evaluation expected good prognosis. Currently, Willow is making constant ongoing progress, although the family notes this is slower than for her 4-year-old brother. The neurologic examination and developmental examination indicate that she has mild developmental delays and subtle hand preferences where she uses both hands but tends to prefer her right hand more than the left. At this point she does not demonstrate significant mental or physical impairments. Her EEG post cooling was normal. Her head ultra-sound was normal. Her head MRI was normal and showed no evidence of IE or hemorrhage. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. The Petition, along with the unrebutted medical reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine issues of material fact regarding the compensability of this claim.
The Issue Whether Jaden Myers qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Leigha Myers and Curtis Myers are the natural parents and guardians of Jaden Myers, a minor. Jaden was born a live infant on November 13, 2008, at Southern Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center hereafter, Baptist Medical Center, a licensed hospital located in Jacksonville, Florida, and his birth weight was in excess of 2,500 grams. The physician providing obstetrical services at the time of Jaden's birth was Mitzi Brock, M.D. Dr. Brock was, at all times material, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. Notice is not a contested issue in this case. Mrs. Myers' prenatal course was complicated by pregnancy-induced hypertension. She was admitted to Baptist Medical Center on November 13, 2008, at 40 weeks' gestation, for induction of labor. Mrs. Myers was admitted at 7:24 a.m., on November 13, 2008. Oxytocin (Pitocin) IV was started at 7:44 a.m. At 8:47 a.m., Mrs. Myers' membranes were artificially ruptured by Dr. Brock, and clear fluid was noted. A vaginal exam was performed at 8:49 a.m., with findings indicating Mrs. Myers was 3-4 cm dilated; 60% effaced and at a -2 station. Fetal movement was reported and audible. The same day, between 8:57 a.m., and 11:13 a.m., the Pitocin dosage was increased from 6 mu/min to 14 mu/min. At about 11:57 a.m., the infant had an episode of bradycardia.2/ An epidural bolus was administered at 12:07 p.m. (Noon+). A vaginal exam was performed at 12:17 p.m., with findings indicating that Mrs. Myers was 4 cm dilated; 80% effaced and at a -2 station. At 1:36 p.m., an oxygen face mask was started as a fetal intervention. Mrs. Myers' labor continued to progress, and a vaginal exam at 2:26 p.m., indicated she was 4-5 cm dilated; 90% effaced and at a station -2. A vaginal exam was performed at 3:15 p.m., indicating that Mrs. Myers was 7 cm dilated; 90% effaced and at a -2 station. At this time, Dr. Brock also reviewed the fetal monitor strips. At 4:17 p.m., a Foley catheter was placed in preparation for a cesarean section. Another vaginal exam was performed at 5:24 p.m., indicating the mother was 7-8 cm dilated; 90% effaced and at a -2 station. Dr. Brock was at Mrs. Myers' bedside and performed another vaginal exam at 7:09 p.m. This examination indicated Mrs. Myers was 9-10 cm dilated and 100% effaced. At 7:29 p.m., Dr. Brock indicated that she would try to rotate the infant. Mrs. Myers began to push, starting at 7:30 p.m., and continued pushing with contractions until 8:30 p.m. The fetal monitor strips reveal that the infant experienced an episode of tachycardia3/ between 7:50 p.m. and 7:53 p.m. While Mrs. Myers was pushing between 7:30 p.m., and 8:30 p.m., the Kiwi vacuum extractor was positioned and there were four pop-offs at 8:01 p.m., 8:04 p.m., 8:10 p.m., and 8:21 p.m. At 8:31 p.m., the baby's head was out. Supra pubic pressure and the McRoberts maneuver were used, resulting in delivery of Jaden Myers at 8:32 p.m. Delivery complications included shoulder dystocia suprapubic pressure, McRoberts maneuver and possible right clavicle fracture with limp right arm. Jaden's Apgar4/ scores were 1 at 1 minute; 3 at 5 minutes; and 6 at 10 minutes. There was evidence of acidosis. At 8:33 p.m., Jaden was bagged and masked. He was transferred to NICU with oxygen bagging and masking in progress at 8:41 p.m. He was admitted to NICU at 8:42 p.m., for neonatal depression and was noted to be cyanotic, depressed, floppy and flaccid in minimal respiratory distress. A subgaleal hemorrhage was present, as was a denuded scalp lesion and vacuum mark. Jaden had generalized decreased tone and activity. Delivery complications included shoulder dystocia and deep variable decelerations. At two minutes of age, Jaden was very pale, receiving oxygen with bag mask with chest compressions at 45 seconds of age for initial heart rate of 40. Color improved slightly, and his heart rate increased to 100. By five minutes of age, Jaden had been intubated. At 10:40 p.m., Jaden was approximately two hours old. At that time, he was assessed as having a head circumference of 36 cm. His scalp abrasions were covered with tegaderm, and Cool Cap equipment was applied per protocol. At 11:00 p.m., Jaden had bicycling-like movements of his arms and legs, which did not stop with touch. At 11:30 p.m., he was noted to have mild, intermittent grunting. At 11:52 p.m., Phenobarbital was administered for continuous movement of his arms and legs. Jaden continued with bicycling movements of his arms and legs at 12:45 a.m., on November 14, 2008, and at 1:10 a.m., another dose of Phenobarbital was administered. The medical record reflects that there were no further bicycling movements after the second dose of Phenobarbital. Jaden remained on the Cool Cap until November 17, 2008, when it was removed at 6:00 a.m., and he was rewarmed. Scalp abrasions and weeping were noted. A CT scan performed on November 17, 2008, at 12:44 p.m., identified extensive cephalohematoma; trace amounts of hyperdense hemorrhage beneath the left coronal suture; hyperdensity of the tentorium, which could represent a trace amount of subdural hematoma; obliteration of both external auditory canals, secondary to soft tissue swelling/hemorrhage with fluid in both ears. According to the NICU Discharge Summary, Jaden's hospital course from November 13, 2008, through November 26, 2008, was complicated by respiratory distress, metabolic acidosis, hypoperfusion, disseminated intravascular coagulation, thrombocytopenia, seizures, jaundice surveillance, renal dysfunction, hyperglycemia, and hypocalcemia, all of which subsequently resolved themselves prior to discharge. Upon Jaden's discharge, diagnoses included anemia, neonatal depression, subgaleal hemorrhage and fracture of the clavicle. Nonetheless, despite what on its face appears to be a difficult delivery, Jaden's development has continued to improve as he has grown. Jaden has been followed by Dr. Rodolfo Pena- Ariet, a pediatrician with Northeast Florida Pediatric Association, P.A., from November 29, 2008, to the present. Jaden has been treated for normal childhood illnesses and has met all of his developmental milestones. On January 4, 2009, David O. Childers, M.D., University of Florida, Department of Pediatrics, Division of Developmental Pediatrics, gave Jaden a newborn neurobiologic risk score of "three," whereby a score of greater than "six" indicated the child was at risk. Jaden scored a "one" or "normal" for sensory and behavioral response, axial tone, extremity tone, deep tendon reflexes and primitive reflexes for an overall combined score of "five." A core of "five to eight" indicates low risk. However, Dr. Childers diagnosed Jaden with torticollis,5/ recommended physical therapy and made a referral to the Early Intervention Program for evaluation. A referral was made on January 26, 2009, to "Early Steps" for a developmental evaluation. "Early Steps" is Children's Medical Services' Early Intervention Program provided by the Department of Pediatrics of the University of Florida, and sponsored by the Florida Department of Health. In addition, on March 19, 2009, Jaden's well-child visit at four months of age indicated that he was doing well, being seen by Dr. Childers, Early Steps, and Brooks Rehabilitation and that his only problem was torticollis. According to his chart, subsequent well-child visits with Dr. Pena-Ariet did not identify any concerns for Jaden's growth and development. On February 12, 2009, Mr. and Mrs. Myers had concerns regarding Jaden's motor development, and regarding the diagnosis of torticollis, as well as concerns regarding his overall development as might be observed by clinicians. During the evaluation, Jaden was holding his head turned to the left, or when his head was midline, it was flexed to his right shoulder. His thumbs tended to be flexed into his palms. Jaden was referred to Brooks Rehabilitation to work at being able to turn his head in all directions when on his tummy, when on his back, or when he was held so that he could explore and interact with toys and people in his everyday activities. The goal for achieving these improvements was set variously at May 2009 and August 2009. Jaden received physical therapy at Brooks Rehabilitation, a provider of physical therapy, from March 12, 2009, until May 21, 2009, for torticollis affecting his right side. Jaden's evaluation on March 12, 2009, found that he kept his head rotated to the left side on "pull to sit" (head lag), but that he was able to keep his head in line with his trunk with no head lag. His head's range of motion in supine position was limited to right rotation when turning his head to track objects. Jaden also kept his head rotated to the left side when holding his head midline with supported sitting. However, physical therapist Shawn T. Hubbard noted in the Discharge Summary dated May 27, 2009, that Jaden and his caregiver (mom) had attended all sessions; that Jaden had shown an improvement with his cervical range of motion, both actively and passively; that he was able to sit supported for short periods of time with good head control; and that he had completed his treatment program. There have been no subsequent physical therapy sessions. In his Follow-Up Neurodevelopment Assessment, dated May 4, 2009, Dr. Childers indicated that at 5.75 months of age, Jaden was saying one word other than "mama" and "dada"; was able to support himself on his forearms in prone position and support himself on his wrists in prone position; and that Jaden had full range of motion with his extremities. Also, Jaden's muscle bulk, power and tone were age appropriate. His fine motor skills, including grasp and release, finger opposition and finger-to-nose skills were normal. Jaden's gross motor skills, including gait and tandem gait were normal. "Sit-to-stand" was normal. His unipedal stand and single leg hop was normal. Follow-up was recommended in one year. On August 10, 2009, Ellen Hopkins of the Northeastern Early Steps Program indicated on the Individualized Family Support Plan Periodic Review that Jaden had successfully reached his outcome by being able to turn his head in all directions and was now very mobile, crawling and pulling-up without any difficulty. Jaden was subsequently released from physical therapy because he had reached his goals. On February 12, 2010, Jaden's file at Early Steps was placed on inactive status. On November 2, 2010, at age 23 months and 13 days, Jaden was again assessed by Dr. Childers, using the Bayley Scales of Infant and Toddler Development, Third Edition. Upon cognitive testing, Jaden could discriminate between objects; regard an object continuously for five seconds; show visual preference; habituate to an object within 30 seconds; prefer to look longer at a novel object; habituate to picture and prefer a novel picture; take blocks out of a cup; engage in relational play to self and others; had visual displacement; could attend to a whole story; had pegboard series testing; object assembly; picture matching; representational and imaginative play; understand the concept of one; and engage in multi-scheme combination play. Dr. Childers' testing further indicated that Jaden's receptive language abilities included interaction with others; that he could identify pictures and three items of clothing; identify action pictures and five body parts; follow two-part directions; understand the use of objects; and understand pronouns. Regarding expressive language, Jaden was able to use two words appropriately, use at least one word to make his wants known; combine a word or gesture; name pictures; use eight words appropriately; answer "yes" and "no" in response to questions; imitate a two-word utterance; make a two-word and multiple word utterance; and use pronouns. Jaden's fine motor skills at that time of testing with Dr. Childers included: stacking a series of blocks; imitating strokes with a crayon, horizontally and vertically; placing ten pellets in a bottle within 60 seconds; transitional grasp with crayon or pencil; placing three coins in a slot; taking blocks apart; using his hand to hold paper in place while scribbling; and connecting a series of blocks. His gross motor skills included the ability to: throw a small ball forward; squat without support; stand up without support; walk up and down stairs; walk backward and forward; run with good coordination; balance on one foot, right and left; walk sideways; jump from bottom step and kick a large ball. Respondent offered, via deposition, the findings and expert opinion of Dr. Michael S. Duchowny, a board-certified pediatric neurologist, who reviewed and analyzed Jaden's medical records and who had personally performed an independent medical examination of Jaden on February 3, 2010, when Jaden was fourteen months old. Dr. Duchowny did not believe that Jaden had any permanent and substantial mental or physical impairments as of the age of fourteen months. He further testified that at the time of his evaluation, Jaden's parents indicated that he had met his age-appropriate developmental milestones. Based on Dr. Duchowny's evaluation and review of the records, the acidosis and any oxygen deprivation that Jaden may have experienced during the birthing process has not had any permanent or substantial impact on him. These expert opinions are demonstrated by the following excerpts from Dr. Duchowny's deposition of August 4, 2011: [Dr. Duchowny] . . . The neurologic examination revealed him [Jaden] to be an alert, cooperative and socially interactive boy. He was curious, he was easily engaged. In fact, he sat quietly in his father's lap and he did make sounds, but I did not hear him speak words. There was a slight amount of drooling, very small. His cranial nerve examination was essentially normal, as detailed in the report. Similarly, the motor examination revealed full strength. Muscle bulk and tone was also normal. There were no abnormal movements, no weakness. He actually walked fairly steadily for his age, he didn't fall, and he climbed well. He had age-appropriate manual dexterity with both hands. He had good fine motor movements and thumb/finger opposition. He could transfer an object between his hands and did not show a hand preference. That was all normal. His sensory examination was also normal. There were no abnormalities of his neurovascular examination and, essentially, my impression of these findings was that his neurological examination was normal for developmental age. Q. All right. And would you describe his physical examination as normal as well? A. Yes, sir. In fact, both the physical and neurological examinations were absolutely fine. Q. Would you consider your findings consistent with what you read in the deposition transcripts from the parents as to how they described Jaden's growth and development and how he was performing at the time of those depositions? A. I would, yes. Q. In other words, your findings are consistent with their own perspective as to how Jaden was doing and what, if any, issues he may be experiencing? A. Yes, sir. Q. Based on your review and examination of Jaden, did you form an opinion as to whether or not he suffered from any permanent and substantial mental impairment? A. In my opinion, he had neither a substantial mental nor substantial motor impairment. Q. Based on your examination, did you form an opinion as to whether or not he would qualify for coverage under the NICA program? A. Based on my understanding of the NICA program requirements--and that is that in order to be eligible a child should suffer from a permanent mental--a permanent and substantial mental and physical impairment. I felt that Jaden did not qualify for eligibility into the NICA program. (Exhibit N: Depo. pages 14-16; Bates 1573- 1575) * * * Q. . . . At the end of your report--and I think it may have been attached as an exhibit now to the deposition--of February 3, 2010, you write his, meaning Jaden, "his neurological examination today is entirely normal." Entirely normal for a fourteen-month old? A. Yes, sir. Q. Is that what you meant? A. Yes, sir. Q. And so you were asked by Mr. Bajalia what your conclusion was and you said that he had neither a substantial mental or motor impairment. At the time you examined him, did Jaden have any mental impairment that you could identify? A. No, sir. Q. Did he have any physical impairment that you could identify? A. No. * * * Q. Okay. Now in your initial discussion of your February 3, 2010 report, you talked about the medical history that was obtained from the parents. You talked about his growth and developmental parameters and the fact, from the parents' perspective, they were all normal. Do you recall that? A. Yes. (Exhibit N: Depo. pages 28-29; Bates 1587-1588) (emphasis added). Leigha Myers' deposition testimony further shows that, despite Jaden's initial hospital course, he has shown no physical or mental impairments, but rather, has grown up as any other child. Specifically, Mrs. Myers testified on May 18, 2011, as follows: Q. . . . Tell me as his parent generally how--how he is doing now. A. He seems to be doing what every other kid does that I know of. Q. When you say he seems to be doing what every other kid is doing that you know of, it is your opinion that he appears to be normal from a physical standpoint? A. Yes. Q. Does he appear to be normal from a mental perspective? A. Yes. Q. Or cognitively? A. Yeah. Q. . . . From a physical perspective, what, if any, issues does he have? A. He doesn't have any that I know of right now. Q. . . . And from a mental perspective, or cognitive perspective, what, if any, issues does he have? A. None that I know of-- Q. Okay. A. --at this time. Q. As his parents--as his parent, are there any concerns from your perspective from a developmental perspective as far as Jaden is concerned? A. No, no. (Exhibit M: Depo. pages 8-9; Bates 1533-1535) Jaden's mother also denied that there were any chronic physical developmental issues for which Dr. Pena-Ariet is currently treating Jaden; that there is any ongoing physical therapy for Jaden; and that Jaden was ever below the standard child development curve for growth and development. She also acknowledged that on formal testing "of everything" (presumably cognitive and physical abilities) Jaden scored "average or better." Q. Has Jaden had any formal testing done to assess his cognitive level or abilities? * * * A. [Mrs. Myers] Yes, I think it was kind of everything. He had, like, a book he had to go through, to do all these little tests and stuff, but he--he scored average on it-- Q. Okay. A. --like average or better. Q. Were there any issues or concerns that were relayed to you about his development as a result of that testing? A. No. (Exhibit M: Depo pages 28-29; Bates 1553-1534) Leigha Myers further testified that Jaden had physical therapy to resolve an issue with torticollis after he was born but that he has not required speech therapy, occupational therapy or any additional therapies. Jaden has also never seen a neurologist. She does not believe Jaden will need physical or occupational therapy in the future. According to Curtis Myers, Jaden's father, who also testified via a May 18, 2011, deposition, Jaden is physically active playing horseshoes and basketball and appears to have met his developmental milestones, as follows: * * * Q. . . . And you know, from a physical perspective, when you guys play outside, he doesn't appear to have any issues running? A. [Curtis Myers] No. Q. Or jumping? A. No. Q. Or picking up objects like a horseshoe? A. No. Q. And throwing it? A. No. * * * A. Right. I think as far as physically, he seems to be fine. (Exhibit L: depo pages 10-12; Bates 1513-1515) * * * Q. And while you don't remember the exact timing or dates as to when he met those milestones, to your knowledge, did he meet his milestones and develop normally? A. Yes. He--you know, it's funny, because, I mean, he had someone to compare it to with his little friend Isaac being two years old and they were real close together as far as a lot of stuff. Isaac seems to be a little bit ahead of Jaden somewhat, but they're pretty close as far as the developmental type stuff. Q. Nothing that would cause you any concern? A. No. Q: Okay. A. Makes you proud. (Exhibit L: Depo. Pages 17-18; Bates 1520-1521) While no one disputes that Jaden had a difficult delivery, given the record, it is resolved that Jaden does not suffer from permanent or substantial mental or physical impairments.
The Issue At issue in this proceeding is whether Sarah Massey, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental Findings Gina R. Massey and James Massey, are the parents and natural guardians of Sarah Massey (Sarah), a minor. Sarah was born a live infant on March 14, 1993, at St. Joseph's Women's Hospital (St. Joseph's), a hospital located in Tampa, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Sarah was Steven Ira Arkin, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Mrs. Massey's antepartum course and Sarah's birth At the time of Sarah's birth, Mrs. Massey was 28 years of age, and Sarah was to be her first child. Her estimated date of confinement was established as March 20, 1993, and her pregnancy was uncomplicated. On March 13, 1993, Mrs. Massey started to experience contractions, and at or about 7:00 p.m. her membranes spontaneously ruptured. Following her physician's advice, Mrs. Massey presented to St. Joseph's Women's Hospital at or about 9:00 p.m. By 5:30 a.m., March 14, 1993, Mrs. Massey's cervix had dilated to four centimeters; however, she failed to progress and at approximately 8:00 a.m. Pitocin was started. Thereafter labor continued, but without progress, until 9:20 a.m., at which time Pitocin was discontinued and Dr. Arkin decided, for reasons hereafter discussed, to proceed with a caesarean section. Pertinent to this case, starting at 5:30 a.m., March 14, 1996, and extending until delivery, the fetal heart rate was monitored by fetal scalp electrode. Such monitoring revealed, overtime, repetitive variable and late decelerations; a reflection of fetal stress. Based on such indicia of fetal distress and Mrs. Massey's failure to progress, Dr. Arkin elected to proceed by caesarean section. Mrs. Massey was taken to the operating room at 9:30 a.m., anesthesia was started at 9:35 a.m., and surgery commenced at 9:56 a.m. At 10:01 a.m., Sarah was delivered. Upon delivery Sarah breathed spontaneously, and did not require resuscitation. The delivery record reveals no abnormalities observed at birth; however, Sarah was noted to have a temperature of 102.5 degrees. Her Apgar scores were noted as 8 at one minute and 9 at five minutes. Such scores are considered good or normal. 3/ Sarah was transferred to the well baby nursery at 10:20 a.m. where, upon admission she was noted to exhibit grunting and nasal flaring, as well as a continued pale color and poor lung exchange of air. By 10:50 a.m. Sarah's color had improved; however she continued to grunt intermittently. Considering Sarah's presentation, the initial concern was of infection, given the mother's and child's elevated temperatures at birth, as opposed to hypoxic insult. Consequently, Sarah was placed on a seven-day regimen of antibiotics as a precautionary measure. 12. During the 11:00 p.m. (March 15, 1996) to 7:00 a.m. (March 16, 1996) shift, Sarah exhibited some right-sided twitching consistent with seizure activity. Following such report, initial physical examination by her treating physician failed to observe any jitteriness; however, questionable eye deviation to the left was noted. Consequently, an electroencephalogram (EEG) and cranial ultrasound were ordered, and a neurologic consult was placed. The EEG of March 16, 1993, was abnormal, and demonstrated active electrical seizure activity in the left hemisphere. The cranial ultrasound of the same date likewise demonstrated an abnormality. That study found: . . . There is an echogenic, amorphous area located within the left basal ganglion region. . . . The findings are nonspecific, but given the presentation and age of the infant, a hemorrhage would be most likely. No germinal matrix, hemorrhage or abnormality is seen and no periventricular white matter abnormality is seen to suggest hypoxic/ ischemic brain injury. Of note, color Doppler ultrasound of the area was performed, and no abnormal vascularity to the echogenic area was seen. This would support a hemorrhage over a tumor . . . since no vascularity was seen. Still, computer tomography of the head is recommended to further evaluate this abnormality if appropriate. No other abnormalities are seen. The brain is structurally normal. The ventricles are normal in size. Conclusion: Amorphous, echogenic mass in the left lentiform nucleus and external capsule region which most likely represents an intracerebral hemorrhage. Computer tomography at some point is recommended. No other abnormalities are seen. No germinal matrix abnormality, ventricular enlargement, or evidence of hypoxic/ischemic injury to the periventricular white matter is seen. Sarah was transferred from the well baby nursery to the neonatal intensive care unit (NICU) at approximately 3:00 p.m., March 16, 1993. Following admission, a brain CT scan was ordered. The brain CT scan of March 16, 1993, revealed extensive low attenuation throughout the left cerebral hemisphere, including the basal ganglia, suggesting a large cerebrovascular accident (CVA). No significant midline shift was observed, and no hemorrhage was seen to correlate with the echogenic area observed on the ultrasound performed earlier that day. Neurologic consult was of the impression that Sarah had a seizure disorder, probably secondary to an intra-uterine CVA, and a mild right-sided hemiparesis. Sarah was begun on Phenobarbital and her seizures were well controlled. Following the seven day regimen of antibiotics heretofore noted, Sarah was believed stable, and on March 21, 1993, she was discharged to the care of her parents. The ultimate neurologic result of Sarah's intra- uterine CVA (stroke) was a mild right-sided hemiparesis, evidenced by spastic weakness primarily of her right arm; however, there is also some diminution of motor function in Sarah's right leg. As for her mental status, Sarah's mental functioning currently appears age appropriate and, although it cannot be conclusively stated at this juncture in her life, it appears more likely than not that she has not suffered any diminution of cognitive function. The timing and cause of Sarah's intra-uterine CVA Although the medical records indicate that during labor Sarah underwent fetal stress, as evidenced by fetal heart decelerations, the proof fails to support the conclusion that those events contributed to her neurological deficits. Rather, the proof, as demonstrated by Sarah's presentation at birth, relatively stable condition during hospitalization, and radiological studies, indicates that Sarah's neurological impairments derive from an intra-uterine stroke which significantly predated the onset of labor, as opposed to hypoxic insult during the course of labor or delivery. Apart from Sarah's presentation and progress during hospitalization, the radiological studies, done within two days of her birth, provide compelling proof as to the nature and timing of her injury. First, such studies do not demonstrate evidence of an acute brain injury which could have occurred during the course of labor and delivery. In this regard, it is observed that there was no evidence of edema (a condition of swelling which accompanies an acute brain injury) and no evidence of a recent (acute) hemorrhage (the presence of blood). Second, the area of diffuse low attenuation observed on radiologic study was most likely a presentation of dead or injured brain cells in the area of the hemorrhage which had undergone organic changes over time, and could properly be described as presenting in a chronic state (persisting over a long period of time), as opposed to acute. Finally, the focal nature of Sarah's brain injury, with resultant right-sided hemiparesis, is not generally associated with hypoxic insult. In this regard, it is noted that hypoxic insult generally evidences as a global injury to the brain, as opposed to the focal injury Sarah suffered, with a resultant effect, to varying degrees, on all neurologic function, as compared to the limited neurologic loss Sarah suffered. Given the record, the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist associated with Miami Children's Hospital, that the cause of Sarah's brain injury and her ensuing neurologic impairment was an intra- uterine stroke, which predated labor by as much as one week, is credited as most consistent with the proof. Likewise credited, based on the consistency of his testimony with the proof of record, is Dr. Duchowny's opinion that Sarah's physical impairment can best be described as mild, as opposed to substantial, and that she evidences no loss of cognitive function.
Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
Findings Of Fact Dream was born on February 14, 2018, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Dream. In a medical report dated October 8, 2019, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at about 33 weeks for preclampsia. FHR tracing during labor did not suggest any significant fetal distress. Delivery was by Cesarean section. Umbilical cord blood gas pH was within normal limits at 7.12. There was no seizure activity noted after delivery. No EEG or head imaging studies were done during the newborn hospital course. The child suffered brain injury at some time prior to the MRI at 11 months of age, which was consistent with encephalmalacia. However, the brain injury does not appear to be birth related. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, deliver or the immediate post-delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a Board- certified pediatric neurologist, to examine Dream and to review his medical records. Dr. Duchowny examined Dream on November 26, 2019. In a medical report dated November 27, 2019, Dr. Duchowny summarized his examination of Dream and opined, in pertinent part, as follows: In summary, Dream’s evaluation reveals findings consistent with a substantial mental and motor impairment. The evidences spasticity and hyperreflexia of all extremities, a profound delay in motor milestones and absence of meaningful communication. He also has oromotor dysfunction and a borderline right exotropia. Review of medical records forwarded on November 12, 2019 reveal that Dream was the 2900 gram product of a 34 week gestation complicated by insulin-dependent gestational diabetes, polyhydramnios, pregnancy-induced hypertension and pre-eclampsia. He was delivered by Caesarian section because of worsening pre- eclampsia and non-reassuring fetal heart tones. Dream was a large-for-gestational-age neonate and had Apgar scores of 6 and 7 at one and five minutes. His neonatal course was prolonged although he remained on CPAP for only one day. A brain MR imaging performed on January 14, 2019 (age one month) revealed bilateral multifocal cystic periventricular leukomalacia. Given Dream’s relatively stable intrapartum and postnatal care, I would like to review Dream’s brain imaging before making a final recommendation regarding acceptance to the NICA program. On February 14, 2020, Dr. Duchowny provided an addendum to his neurological evaluation of Dream, following the review of brain imaging studies. Dr. Duchowny and Dr. Willis conferred regarding Dream’s medical records and current neurological status as well. In his February 14, 2020, addendum, Dr. Duchowny opined: It is our combined opinion that the findings on re- review do not support the presumption that Dream’s severe neurological outcome and MR imaging abnormalities were acquired in the course of labor, delivery or the immediate post-natal period as a result of either oxygen deprivation or mechanical injury. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen to Dream’s brain during labor, delivery, and the post-delivery period, which resulted in brain injury. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Dream should not be considered for inclusion in the NICA program. Dr. Duchowny’s opinion is credited. Dr. Willis reaffirmed his opinion in an affidavit dated April 17, 2020. Dr. Duchowny reaffirmed his opinion in an affidavit dated April 17, 2020.
