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.
The Issue The issue in this case is whether Reshnaya E. Francois suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Plan.
Findings Of Fact Reshnaya E. Francois was born on January 31, 2016, at Broward Health, in Coral Springs, Florida. Reshnaya weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Broward Health submitted with the Petition. At all times material, both Broward Health and Dr. Wajid were active members under NICA pursuant to sections 766.302(6) and (7). Reshnaya was delivered by Dr. Wajid, who was a NICA- participating physician, on January 31, 2016. Petitioners contend that Reshnaya suffered a birth- related neurological injury and seek compensation under the Plan. Respondent contends that Reshnaya has not suffered a birth- related neurological injury as defined by section 766.302(2). In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309 provides: The Administrative Law Judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the Administrative Law Judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in § 766.302(2). Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or 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. How much compensation, if any, is awardable pursuant to § 766.31. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . . The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as: . . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (Emphasis added). In the instant case, NICA has retained Donald Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined: The newborn was not depressed. Apgar scores were 8/8. Decreased movement of the right arm was noted. The baby was taken to the Mother Baby Unit and admission exam described the baby as alert and active. The baby had an Erb’s palsy or Brachial Plexus injury of the right arm. Clinical appearance of the baby suggested Down syndrome. Chromosome analysis was done for clinical features suggestive of Down syndrome and this genetic abnormality was confirmed. Chromosome analysis was consistent with 47, XX+21 (Down syndrome). Dr. Willis’s medical Report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: In summary: Delivery was complicated by a mild shoulder dystocia and resulting Erb’s palsy. There was no evidence of injury to the spinal cord. The newborn was not depressed. Apgar scores were 8/9. Chromosome analysis was consistent with Down syndrome. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. The baby has a genetic or chromosome abnormality, Down syndrome. 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. The opinion of Dr. Willis that Reshnaya did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited. In the instant case, NICA has retained Michael S. Duchowny, M.D. (Dr. Duchowny), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: In summary, Reshnaya’s examination today reveals findings consistent with Down syndrome including multiple dysmorphic features, hypotonia, and hyporeflexia. She has minimal weakness at the right shoulder girdle and her delayed motor milestones are likely related to her underlying genetic disorder. There are no focal or lateralizing features suggesting a structural brain injury. Dr. Duchowny’s medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that: Neither the findings on today’s evaluation nor the medical record review indicate that Reshnaya has either a substantial mental or motor impairment acquired in the course of labor or delivery. I believe that her present neurological disability is more likely related to Downs syndrome. For this reason, I am not recommending that Reshnaya be considered for compensation within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny. The opinion of Dr. Duchowny that Reshnaya did not suffer a substantial mental or motor impairment acquired in the course of labor or delivery is credited.
The Issue At issue in this proceeding is whether Michael Chase Anwar, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Lisa Anwar and Saeed Anwar are the parents and natural guardians of Michael Chase Anwar (Michael), a minor. Michael was born a live infant on September 11, 1995, at Florida Hospital, a hospital located in Orlando, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Michael was Jorge Jesus Lense, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Mrs. Anwar's antepartum course and Michael's birth At or about 12:48 a.m., September 11,1995, Mrs. Anwar was admitted, in labor, to Florida Hospital. At the time, her estimated date of confinement was noted as September 22, 1995, and her antepartum course was without apparent complication; however, the fetus was noted to be large for gestational age. Onset of labor was noted as 11:15 p.m., September 10, 1995, with spontaneous rupture of the membranes, and clear amniotic fluid noted. Mrs. Anwar's obstetrical course from admission through Michael's delivery at 1:55 p.m., September 11, 1995, is detailed in Dr. Lense's delivery notes, as follows: The patient . . . presented with spontaneous rupture of membranes since 2315 hours on September 10, 1995. She was in active labor on admission. She progressed through labor to 8 cm dilatation at which time she had a prolonged fetal heart rate deceleration lasting approximately four minutes to fetal heart tones of 70s associated with a tetanic uterine contraction lasting approximately four minutes. This was relieved with terbutaline 0.125 mg subcutaneously and 0.125 mg intravenously. Fetal heart rate returned to normal with good variability and accelerations. She was having mild to moderate variable decelerations. She allowed labor to progress. She progressed rapidly to the anterior lip of the cervix to complete and +1 station. Because the fetal heart rate tracing was reassuring she was allowed to progress spontaneously to reach complete dilatation. However, the variable decelerations progressively worsened. She had temperature elevation of 100.5 [to 101.4]. She was begun on ampicillin 2 grams intravenously for presumed chorioamnionitis [an inflammation of female membranes]. She began pushing second stage labor. The variable decelerations worsened, and the decision was made to shorten second state of labor with vacuum assist. A vacuum was applied after the bladder was empty, complete, complete +3 station. The fetal head was delivered to complete, complete and +4 with the vacuum. However, it was difficult to maintain an adequate suction on the vacuum secondary to the thickness of the fetal hair. However, the patient was able to deliver the infant spontaneously without difficulty. Double nuchal cord was reduced. The rest of the infant was delivered without difficulty . . . The cord was doubly clamped and cut. The infant was noted to have poor respiratory effort and tone at the time of delivery. The neonatal resuscitation team and the neonatal intensive care unit neonatologists were called to the delivery. . . . At delivery Michael was intubated due to apnea (failure of the newborn infant to initiate pulmonary ventilation), and required positive pressure ventilation. Apgar scores of 2 at one minute, 3 at five minutes, and 5 at ten minutes were noted. Chord pH obtained on delivery was noted as 7.01, representing severe acidosis. The Apgar scores assigned to Michael are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Michael's Apgar score totalled 1, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and color being graded at zero. At five minutes his Apgar score totalled 3, with heart rate being graded at 2, color being graded at 1, and respiratory effort, muscle tone, and reflex irritability being graded at zero. At ten minutes his Apgar score totalled 5, with heart rate being graded at 2, respiratory effort, reflex irritability and color being graded at 1 each, and muscle tone being graded at zero. Such scores are abnormal, and consistent with perinatal depression. Michael's course and development subsequent to delivery Following resuscitation, Michael was transferred to the neonatal intensive care unit in guarded condition. After admission, positive pressure ventilation was continued, and he was placed on ventilatory support. A blood culture, complete blood count, urine wellcogen and RPR were obtained, and Michael was started on ampicillin and gentamicin to address the risk of sepsis or infection. Possible seizure activity was noted during the first day of life, with tonic-clonic movements of all four extremities, and he was loaded with phenobarbital. An electroencephalogram was obtained and read as an abnormal neonatal recording characterized by diffuse depression of background cerebral activity; however, no electrographic seizures or lateralized epileptiform discharges were observed, and motion and electrical artifact were noted to be present. Michael was extubated the morning of September 12, 1995, following which he was noted to be "breathing spontaneously, receiving oxygen via nasal cannula." However, overnight he was noted as "quite irritable, jittery, with back arching," and required occasional sedation with Fentanyl. A head ultrasound completed on September 12, 1995, revealed the following: THERE IS A SMALL BLEED IN CHOROID PLEXUS NOTED BILATERALLY. IT COULD BE WORSE ON THE RIGHT THAN ON THE LEFT. THE VENTRICLES ARE NORMAL IN SIZE. THERE IS NO INTRAVENTRICULAR BLEED. NO OTHER ABNORMALITY. IMPRESSION: SMALL CHOROID PLEXUS BLEED NOTED BILATERALLY, WITH THE LEFT BEING MORE EXTENSIVE THAN THE RIGHT. Stated differently, the ultrasound revealed a bilateral grade one intraventricular hemorrhage (IVH). Between the afternoon of September 11, 1995, and the afternoon of September 12, 1995, Michael's hematocrit was noted to drop from 46 percent to 29 percent. Hemoglobin likewise dropped from 15.6 to 10.0. Consequently, due to his anemic condition, Michael was transfused on September 12, 1995. On September 12, 1995, Michael was examined by a consulting physician, most likely to address his neurologic condition. That examination, by Prashant M. Desai, M.D., reported the following observations, impressions, and recommendations: PHYSICAL EXAMINATION GENERAL: Weight is approximately 3.5 kg. Head circumference was 36.75 cm. Anterior fontanel is soft. The infant is lying supine in an open warmer, receiving oxygen via nasal cannula. He looks healthy, well-developed and well-hydrated. No clear dysmorphic features are noted. No apparent significant congenital skin lesions. He is sleeping comfortably. When disturbed, he becomes jittery and extremely irritable. He is difficult to console. He arches his neck and back. He keeps his hands fisted, flexes the elbows, and displays hand tremoring. BACK & SPINE: Appear normal. EXTREMITIES: There is mild stiffness of the extremities. Reflexes are brisk. He will not allow flexion of his neck, and instead, he resists it by neck arching and back arching. He will transiently open his eyes. Face is symmetric. Tongue is midline. Gag reflex is present. IMPRESSION: FULL-TERM ONE-DAY-OLD NEWBORN INFANT WITH PERINATAL DEPRESSION AND HYPOXIC-ISCHEMIC ENCEPHALOPATHY. RECENT DROP IN HEMOGLOBIN AND HEMATOCRIT MAY INDICATE INTRACRANIAL HEMORRHAGE. SUBARACHNOID HEMORRHAGE IS POSSIBLE, AND WOULD BE COMPATIBLE WITH CLINICALLY NOTED NECK AND BACK ARCHING, JITTERINESS AND EXTREME IRRITABILITY. HE HAS BEEN LOADED WITH PHENOBARBITAL AND PLACED ON MAINTENANCE PHENOBARBITAL SECONDARY TO SOME SEIZURE-LIKE ACTIVITY YESTERDAY. ELECTROENCEPHALOGRAM SHOWS DIFFUSE DEPRESSION OF BACKGROUND CEREBRAL ACTIVITY. THIS WOULD BE COMPATIBLE WITH HISTORY OF PERINATAL DEPRESSION. RECOMMENDATIONS: Head computerized axial tomography scan when feasible. Continue Phenobarbital at 4-5 mg/kg/day in two divided doses. He may require p.r.n. sedation with Fentanyl, given his irritability. Obtain a repeat electroencephalogram prior to hospital discharge. Duration of anticonvulsant treatment will depend on his hospital course. If his seizures recur and, in particular, if his extreme irritability persists, a metabolic work-up might be indicated. A CT (computerized tomography) brain scan of September 13, 1995, was read as "probably within normal limits." The scan was read and reported as follows: FINDINGS: THE DURAL VENOUS SINUSES AND THE VEIN OF GALEN ARE RELATIVELY DENSE COMPARED TO BRAIN. THIS IS PROBABLY RELATED TO THIS CHILD'S AGE AND THE COMPARATIVE LOW ATTENUATION OF THE UNMYELINATED BRAIN. THIS APPEARANCE CAN ALSO BE SEEN WITH ELEVATED HEMATOCRIT. WHILE THIS CAN ALSO BE SEEN WITH DURAL SINUS THROMBOSIS, THIS WOULD IMPLY THAT THE ENTIRE DURAL SINUS SYSTEM AS WELL AS THE VEIN OF GALEN WERE THROMBOSED. THAT IS UNLIKELY IN THIS SITUATION ESPECIALLY SINCE NO ASSOCIATED PARENCHYMAL CHANGES ARE NOTED. NO FOCAL PARENCHYMAL ATTENUATION ABNORMALITY IS NOTED. IMPRESSION: THE EXAM IS PROBABLY WITHIN NORMAL LIMITS. THE POSSIBILITY OF AN ELEVATED HEMATOCRIT IS RAISED. On September 14, 1995, Michael was noted to have an increased temperature. To further address the risk of sepsis or infection he was accorded a regimen of Vanco and Claforan for three days. Blood culture, urine, and CSF (cerebrospinal fluid) studies were reported as negative. Phenobarbital was discontinued September 16, 1995, and ampicillin and gentamicin were discontinued September 18, 1995. All intervening culture studies were reported as negative. A repeat electroencephalogram of September 20, 1995, was read as a "mildly abnormal neonatal recording due to some mild diffuse suppression of background cerebral activity." However, consistent with improvement in Michael's status, the recording was noted to be "considerably improved from [the] previous electroencephalogram performed on day 1" of life. On September 25, 1995, Michael had a second CT brain scan.1 That scan, unlike the first scan, was apparently read as abnormal, reflecting a presentation consistent with hypoxic- ischemic encephalopathy2 or, stated differently, brain injury occasioned by oxygen deprivation. (Discharge Summary for Michael Anwar, at page 2). Michael was discharged at 4:45 p.m., September 25, 1995, to the care of his parents.3 At the time, he was noted to exhibit "diffusely poor tone" ("infant limp, floppy tone"), and "little spontaneous movement" or, stated differently, "little spontaneous arousal." However, positive suck, positive blink, and positive gag were present, and Michael was free of seizure activity. Discharge diagnosis was, as follows: DISCHARGE DIAGNOSIS: 35 weeks appropriate for gestational age male Perinatal depression Sepsis, ruled out Seizures, ruled out Hypoxic-Ischemic Encephalopathy Bilateral Grade 1 Intraventricular hemorrhage Anemia On February 27, 1998, following the filing of the claim for compensation, Michael was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's examination revealed the following: PHYSICAL EXAMINATION reveals a small 2 1/2 year old, appropriately proportioned boy. The weight is 25 pounds. The skin is warm and moist without neurocutaneous stigmata. There are no gross dysmorphisms. No digital, skeletal or palmar abnormalities are noted. The head circumference measures 48.6 centimeters which approximates the 3rd percentile for age. There are no cranial or facial anomalies or asymmetries, and the fontanels are closed. The neck is supple without masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert boy who is socially interactive and has only a few words. There is an abundant amount of babbling sounds which suggest the emergence of speech patterns. Michael is in fact able to identify all of his body parts and knows both primary and secondary colors. He is quite alert and his socialization skills are well developed. He maintains good central gaze fixation with conjugate following movements and the ocular fundi are normal. There are full and conjugate extraocular movements with blink to threat from both directions. There are no significant facial asymmetries. The tongue movements are poorly coordinated and drooling is a prominent feature. Motor examination reveals a static generalized hypotonia with a dynamic increase in tone and bilateral upper extremity posturing. Michael is grossly ataxic [uncoordinated], both for axial and appendicular musculature [both truncal stability as well as all four limbs (arms and legs)] and his gait shows marked instability and a tendency to fall in all directions. Romberg sign could not be tested. He is unable to perform alternating movement sequences and he had poor dexterity for individual finger movements. The DTR's are present and 2 to 3+ bilaterally and plantar responses are downgoing. Sensory examination is intact to withdrawal of extremities to touch and pin, and a neurovascular examination discloses no cervical, cranial or ocular bruits. There are no temperature or pulse asymmetries. IN SUMMARY: Michael's neurologic examination reveals findings consistent with ataxic cerebral palsy. I believe that his cognitive and social skills are actually quite good but [are] restricted as a result of his motor deficit. I suspect that Michael will continue to improve in the future and that he will walk independently within the next 12 to 18 months. The dispute regarding compensability Given the proof, it cannot be subject to serious debate that Michael suffered an injury or anomaly in brain development that has resulted in neurologic impairment. What remains to resolve is the cause and timing (genesis) of the event which led to Michael's anomalous brain development or, more pertinent to these proceedings, whether the proof demonstrates, more likely than not, that the anomaly Michael suffers was "caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as opposed to some other genesis. Section 766.302(2), Florida Statutes. Also at issue is whether, if such an injury occurred, Michael was rendered "permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the nature and significance of Michael's impairment is dispositive of the claim, and it is unnecessary to resolve the dispute regarding the cause and timing of the event which led to Michael's anomalous brain development.4 Regarding the nature and significance of Michael's impairment, the proof demonstrates that the physical impairment he suffers may best be described as moderate, as opposed to severe, and that his physical impairment is not static, but improving. As for Michael's mental status, it has been observed to be at or near age level, and, consequently, there is no evidence of any mental impairment.5
Findings Of Fact On December 13, 2018, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, Florida Statutes, otherwise known as the Plan. The baby was born on April 1, 2018, at Winnie Palmer Hospital for Women and Babies (Hospital). The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records the Hospital submitted with the Petition. In the instant case, NICA has retained Donald C. Willis, M.D. as its medical expert specializing in maternal- fetal medicine. Upon examination of the pertinent medical records, Dr. Willis opined: There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’s medical report dated February 25, 2019, (which reviews additional medical records), are attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “1”. His Affidavit reflects his ultimate opinion that: The baby suffered cerebral infarction, which appear to have occurred after the period of stabilization during the immediate post delivery period. Medical records do not suggest the cerebral infarction occurred during labor, delivery or the immediate post delivery period. As such, it is my ultimate opinion that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. In the instant case, NICA has retained Michael S. Duchowny, M.D. as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Duchowny opined: I reviewed medical records which document Elias's birth at 37 weeks' gestation at Winnie Palmer Hospital. The pregnancy was complicated by pre-eclampsia, asthma, GERD and obesity. The mother had a fever to 101 degrees at time of delivery and was diagnosed with chorioamnionitis. Elias was born vaginally with a birth weight of 5 pounds 10 ounces (2547 grams). Apgar scores were 8 and 9 at 1 and 5 minutes. Elias was admitted to the NICU and found to have a blood glucose of 35. His NICU stay was further complicated by apnea and desaturation that raised concerns for seizures; he was started on Keppra, Elias was never intubated or mechanically ventilated and was maintained on room air. An MRI scan of the brain on DOL #2 revealed multiple ischemic infarcts involving the left lateral temporal lobe, left posterior thalamus and left hippocampal formation. There was adjacent extra-axial hemorrhage over the left temporal lobe. The findings were felt to most likely represent areas of venous infarction. Dr. Duchowny’s medical report is attached to his Affidavit, with the Affidavit being attached to the motion as Exhibit “2”. His Report reflects his ultimate opinion that: A consideration of the findings from today's evaluation and record review lead me to recommend that Elias not be considered for compensation within the NICA program. He has normal motor functions and his stroke was likely acquired prenatally. There is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the immediate post-delivery period. The Affidavits of Dr. Willis and Dr. Duchowny are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. As noted, Petitioner did not file a response to the motion, nor submit countervailing affidavits. The Petition, along with the Affidavits attached to the motion, establish that there are no genuine issues of material fact regarding the compensability of this claim.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
The Issue At issue in this proceeding is whether Emmanuel Hooks, 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 Petitioner, Brianna Denise Davidson, is the mother and natural guardian of Emmanuel Hooks, a minor. Emmanuel was born a live infant on July 26, 1999, at Gulf Coast Medical Center, a hospital located in Panama City, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Emmanuel's birth was Steven G. Smith, 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. Emmanuel's birth At or about 9:10 p.m., July 25, 1999, Ms. Davidson (with an estimated date of delivery of July 26, 1999, and the fetus at 40 weeks gestation) presented to Gulf Coast Medical Center in labor. Initial vaginal examination revealed the cervix at 2-3 centimeters dilation, effacement as "thin," and the fetus at station -3. External fetal monitoring revealed a reassuring fetal heart rate (of 140-150 beats per minute), with accelerations. Ms. Davidson was continually monitored, and at 11:00 p.m., she was admitted to labor and delivery. At the time, uterine contractions were noted at 3-5 minute intervals, and vaginal examination revealed the cervix at 3 centimeters, effacement at 90 percent, and the fetus at station -3. Ms. Davidson's labor apparently did not progress, and at 2:49 a.m., July 26, 1999, she was started on Pitocin. Thereafter, Ms. Davidson's labor progressed slowly, and at 6:45 a.m., vaginal examination revealed the cervix at 5 centimeters, effacement at 90 percent, and the fetus at station -1. In the interim, external fetal monitoring continued to reveal a reassuring fetal heart rate. Ms. Davidson's labor continued to slowly progress, and by 9:00 a.m., vaginal examination revealed the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1. In the interim, at 8:48 a.m., Ms. Davidson's membranes spontaneously ruptured, with clear fluid noted. Thereafter, variable decelerations were noted with each contraction, consistent with umbilical cord compression, and fetal heart base line remained reassuring (in the 140-beat minute range). From 9:00 a.m. to 11:45 a.m., Ms. Davidson's labor failed to progress (with the cervix at 8 centimeters, effacement at 100 percent, and the fetus at station -1), and at 11:45 a.m., Ms. Davidson was transported to the operating room for delivery by caesarean section. Notably, between 9:00 a.m., and 11:45 a.m., while variable decelerations continued, the fetal heart rate base line remained in the 140-beat per minute range, and fetal electrode revealed the presence of short term variability. According to the records, Ms. Davidson was in the operating room at 11:45 a.m., anesthesia started at 11:45 a.m., surgery started at 12:32 p.m., and Emmanuel was delivered at 12:35 p.m. Of note, the "nucal cord x 1" observed during delivery was described as "loose," and fetal heart monitoring in the operating room and immediately prior to the caesarean section revealed a reassuring fetal heart rate. On delivery, Emmanuel was bulb-suctioned, but did not require resuscitation. Initial newborn assessment noted no apparent abnormalities, and Apgar scores were recorded as 8 at one minute and 9 at 5 minutes. The Apgar scores assigned to Emmanuel are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex response, and color, with each category being assigned a score ranging from the lowest score of 0 through maximum score of 2. As noted, at one minute, Emmanuel's Apgar score totaled 8, with heart rate, respiratory effort, muscle tone, and reflect response being graded at 2 each, and color being graded a 0. At five minutes, Emmanuel's Apgar score totaled 9, with heart rate, respiratory effort, muscle tone, and reflex response again graded at 2 each, and color now graded at 1. Such scores are considered normal, and inconsistent with recent hypoxic insult or trauma. Following the initial newborn assessment, Emmanuel was transported to the regular nursery, where he remained until he was discharged with his mother on July 29, 1999. Notably, the newborn nursery admission assessment was grossly normal, and there is no evidence of any complication during Emmanuel's stay. Emmanuel's subsequent development On December 10, 2001, following the filing of the subject claim, Emmanuel was examined by Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and clinical neurophysiology. Dr. Duchowny reported the results of his neurology evaluation, as well as the history he obtained from the parents, as follows: HISTORY ACCORDING TO MR. AND MRS. HOOKS: Emmanuel is a 2 1/2 year old boy who the parents indicated suffers from cerebral palsy and brain injury. They began by explaining that Emmanuel suffered brain injury at birth due to a cord being wrapped around his neck. He was delivered by emergency caesarean section. They noted that Emmanuel's MRI has shown periventricular leukomalacia and furnished a copy of the MRI report. Emmanuel's growth and developmental milestones have been slow. He did not rollover until 9 months, nor did he sit until a year of age. He stood at 14 months, walked at 18 months and said his first word at age 2. He now has a lexicon of only one word ("ma-ma"). Emmanuel is not toilet trained. He is described as being extremely active. He does not sit still at anytime during the day and it is difficult to examine him or provide therapy. He attends a wellness center where he receives physical, speech and occupational therapy on a twice weekly basis. Communication is a particular problem area for him. Emmanuel's appetite has also been diminished and he is now "only starting to eat". His mother indicated that Emmanuel suffers from "low muscle tone" and that he drools frequently. She also mentioned that he wakes up frequently at night and is just beginning to sleep more consistently. Emmanuel does not play with other children at school. His activity level and intrusiveness have precluded meaningful peer interactions. The parents are aware that his eye contact is poor. The parents stated that Emmanuel "had seizures", but then went on to explain that 2 EEG's were normal and he was never placed on medication. The events were described as "getting into a trance". He has not had motor convulsions. FAMILY HISTORY: Both parents are healthy. A 4 year brother had no medical problems and there are no family members with degenerative illnesses, mental retardation or cerebral palsy. Emmanuel was born at Gulf Coast Medical after a 39 week gestation. He weighed 8-pounds, 9- ounces at birth and breathed well. He was discharged from the nursery at 3 days of age. Emmanuel is fully immunized, has no significant drug allergies and never been hospitalized or undergone surgery. His vision and hearing are said to be excellent. PHYSICAL EXAMINATION reveals an alert, but extremely active and well developed 2 1/2 year old toddler. Emmanuel weighs 39-pounds. His head circumference measures 50.2 cm and there are no cranial or facial anomalies or asymmetries. Emmanuel's neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Emmanuel's NEUROLOGIC EXAMINATION is difficult to complete, as he is constantly in motion. The physical examination requires restraint from his father, as he continually tries to touch things and pull items off the desktop and shelves. Emanuel has very poor eye contact and did not communicate in words at anytime during the session. It was difficult for him to follow commands as well, as his attention span constantly shifted. He drooled intermittently. The tongue movements are poorly coordinated. Cranial nerve examination reveals full visual fields to direct confrontation testing. There is blink to threat from either direction. I could not perform a fundoscopic examination. There are no facial asymmetries. Motor examination reveals mild generalized hypotonia with full range of motion. There are no adventitious movements, aside from the high activity level and no evidence of focal weakness or atrophy. Emmanuel's gait is stable, but slightly wide- based and he has generalized hypotonia. The deep tendon reflexes are 2+ bilaterally and plantar responses are in flexion. There is withdrawal of all extremities to touch. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Cerebellar testing could not be completed due to poor cooperation. In SUMMARY, Emmanuel's neurologic examination is significant for multiple areas of developmental delay. He is extremely overactive and inattentive, and has a significant behavior and communication problem. He additionally demonstrates poor eye contact and has a significant social disability. There are no specific focal or lateralizing findings to suggest a structural brain lesion. The findings on Emmanuel's neurologic examination suggests a diagnosis of a pervasive developmental disorder. Emmanuel fits within the autistic spectrum and this was communicated to the family . . . . The cause and timing of Emmanuel's neurological impairment To address the issue of whether Emmanuel's impairments were associated with 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," as required for coverage under the Plan, Petitioner offered selected medical records relating to Ms. Davidson's antepartum course, as well as those associated with Emmanuel's birth and subsequent development. Additionally, Emmanuel's parents testified on their own behalf, and Respondent offered the deposition testimony of Dr. Duchowny, whose qualifications were previously noted, and the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. As for the cause and timing of Emmanuel's impairments, it was Dr. Duchowny's opinion, based on the results of his neurology evaluation and review of the medical records, that Emmanuel's impairments are not related to perinatal asphyxia or trauma. More particularly, Dr. Duchowny expressed his views, as follows: Q. Based on your review of the records and your evaluation of Emmanuel Hooks, can you give us an overview of his condition? A. Yes. I thought that Emmanuel's neurologic examination revealed evidence of developmental neurologic impairment. He was hyperactive and had an attention deficit disorder and additionally had significant behavior, social and communication problems. All of this suggested he had developmental problems in multiple areas, consistent with a diagnosis of pervasive developmental disorder. Many of the children with pervasive developmental disorder go on to develop childhood autism as they get older. * * * Q. In this particular case, do you believe that Emmanuel's condition was acquired during the course of labor-delivery in the immediate post-delivery period? A. No, I do not. Q. What is the basis for that opinion? A. The basis for my opinion is that autism is a developmental disorder which results from unknown factors operating in utero prior to the onset of labor and delivery and is not a recognized complication of birth asphysia or birth trauma. Q. I take it your opinion is that Emmanuel Hooks did not acquire whatever neurological deficits he had as a result of any oxygen deprivation or mechanical injury occurring during labor-delivery or the immediate post- delivery period? A. That's correct. Q. In fact, was there any evidence in the medical records of any oxygen deprivation that occurred during the course of labor- delivery or resuscitation during the immediate post-delivery period? A. No. Q. Was there any evidence of mechanical injury occurring during the course of labor- delivery or the immediate post-delivery resuscitative period? A. No, there was not? Q. In your opinion, were Emmanuel's problems acquired prior to the course of labor- delivery? A. Yes. As for Dr. Willis, he was also of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with Emmanuel's birth. The medical records, as well as the testimony of the physicians and the parents, have been carefully considered. So considered, it must be concluded that the proof failed to demonstrate that any impairment Emmanuel suffers was occasioned by an injury to the brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, 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. 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 or spinal cord . . . 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). 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."); 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."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
Findings Of Fact Xavier Concepcion was born on September 16, 2014, at Memorial Hospital West in Pembroke Pines, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Xavier’s medical records. In a medical report dated January 20, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was complicated by maternal infection (chorioamnionitis) and a non- reassuring FHR pattern prior to birth. The baby was depressed at birth with a cord blood pH of <6.9. Seizure activity developed shortly after birth. MRI was consistent with acute brain infarction. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. It is possible the brain injury from oxygen deprivation was worsened by infection. I am unable to comment about the severity of the brain injury. Dr. Willis’ opinion that there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Xavier. Dr. Duchowny reviewed Xavier’s medical records, and performed an independent medical examination on him on May 25, 2016. Dr. Duchowny made the following findings and summarized his evaluation as follows: Motor examination reveals symmetric muscle strength, bulk and tone. There are no adventitious movements and no focal weakness or atrophy. Xavier does not evidence dystonic postures or hypertonicity. He has full range of motion at all joints. Coordination: Xavier walks in a stable fashion and does not fall. He can arise from the floor without difficulty. His balance is good and he has well-developed axial and peripheral balance. He grasps with both hand[s] and moved objects between hands without difficulty. He did not fall and his head control is good. * * * In Summary, Xavier’s neurological examination discloses no significant findings. He is developmentally appropriate with no focal or lateralizing features to suggest a structural brain abnormality. Review of the medical records reveals that Xavier was born at Memorial West Hospital at term and transferred to Joe DiMaggio Children’s Hospital. Maternal membranes were ruptured 30 hours prior to delivery, and maternal chorioamnionitis and fever were treated with penicillin. Xavier was born vaginally and was pale, cyanotic, flaccid and unresponsive. A tight nuchal cord was removed. He weighed 7 pounds 7 ounces and his Apgar scores were 1, 5 and 7 at one, five, and ten minutes. The records indicated that an initial arterial pH was 6.95 but the base excess was unknown. Xavier was intubated at 3 minutes of age, established spontaneous respiration at 25 minutes of age and was subsequently extubated. His CBC revealed a bandemia of 22 on September 22nd. Seizures were noted on the first day of life and there was evidence of a mild coagulopathy. The placenta was positive for E.coli. An MRI scan of the brain revealed multiple acute infarcts in the left temporal, occipital and superior parietal regions and right thalamus and putamen, and a small subdural hematoma. Despite Xavier’s difficulties at birth, he has developed well and does not evidence neurodevelopmental delay. I am therefore not recommending Xavier for compensation within the NICA program. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Duchowny’s opinion that Xavier has developed well and does not evidence neurodevelopmental delay is credited. 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. Duchowny that Xavier has developed well and does not evidence neurodevelopmental delay. There is nothing in Dr. Duchowny’s report that indicates that Xavier has either a substantial mental or physical impairment. Thus, Xavier does not meet the requirement of having a substantial physical or mental impairment.
