The Issue At issue is whether Tyler Lee Masterton, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact The parties stipulated as fact that: Paul David Masterton is the parent and natural guardian of Tyler Lee Masterton, a minor; Tyler was born a live infant on August 4, 2004, at Bayfront Medical Center, a licensed hospital located in St. Petersburg, Florida; Tyler's weight at birth exceeded 2,500 grams; Obstetrical services were delivered at Tyler's birth by Manuel A. Reyes, 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; Tyler suffered oxygen deprivation during labor, delivery and resuscitation in the immediate postdelivery period in a hospital; The oxygen deprivation resulted in injury to Tyler's brain; Such injury rendered Tyler permanently and substantially mentally impaired. The record evidence supports the facts stipulated to by the parties. 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. See also § 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Tyler suffered a brain injury during the delivery process which resulted in his suffering a permanent and substantial mental impairment. What remains to be resolved is whether Tyler also suffers from a permanent and substantial physical impairment as a result of the brain injury sustained at birth. As the proponent of the issue, the burden rested on Petitioner to demonstrate and prove that, in addition to the issues stipulated, Tyler suffered a permanent and substantial physical impairment. Petitioner presented no expert medical witnesses to speak to that issue. Petitioner presented his own lay testimony and the lay testimony of James Masterton, Tyler's grandfather. Their testimony and Tyler's School Progress Report and Pre- Kindergarten Assessment, which supplement the testimony, demonstrate observable physical activities below average for Tyler's age and learning deficits attributable to cerebral palsy. However, these observations do not demonstrate substantial physical impairment within reasonable medical certainty. To address the nature and significance of Tyler's physical impairment, the parties had admitted in evidence the medical records from Tyler's delivery and subsequent care. The Affidavit of Raymond J. Fernandez, M.D., a pediatric neurologist, who evaluated Tyler on March 19, 2009, was admitted only to explain or supplement non-hearsay evidence, but to the extent it may be considered, it also does not support a finding that Tyler is permanently and substantially physically impaired. Together with Dr. Fernandez's report, the medical records show that, although Tyler may evidence some physical impairment, Tyler sits independently, stands independently, walks, runs, and jumps on his own, and is able to interact with people and his environment. The medical records further indicate that Tyler scores within the range of average, albeit at the low-end of average, for the physical activities for which he was tested. Further, Dr. Fernandez's opinion, as expressed in his Affidavit and accompanying report, supplements the information in the medical records and supports a finding that Tyler is not permanently and substantially physically impaired. Dr. Fernandez is of the opinion "that Tyler did not sustain a permanent and substantial physical impairment as a result of oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate postdelivery period in the hospital," even though his mental impairment will be permanent. In so concluding, Dr. Fernandez documented the results of his examination, as well as his conclusions, in pertinent part, as follows: PHYSICAL EXAMINATION: Weight 38 pounds. Height 39 inches. Head circumference 47.75 cm. Pulse rate 88. Respiratory rate 18. There were no dysmorphic features or significant skin abnormalities. Heart, lungs, and abdomen were normal. There were no orthopedic abnormalities. He was active and his attention span was short. He was able to draw circles but could not intersect lines even when demonstrated to him. He named 3 of 3 colors correctly (green=gee, blue=bu, red=re). He pointed to several body parts (nose, eye, and belly) but not his ears. He pointed correctly to pictures of animals and he named them although his words were not clear. At times he became restless and wanted to leave the room and when frustrated he bit his hand and tried to hit his father. Mr. Masterton was able to calm Tyler down by speaking gently and holding him. Tyler was not able to follow prepositional requests (I asked him to put an object on a chair, under a chair, and behind a chair but he did not understand these directions). He named a pencil but could not tell me what you do with one. Pupils were equal and briskly reactive to light. I was unable to visualize his optic nerves in detail but there was no gross abnormality noted. He had a subtle right esophoria. Face was symmetric. Palate and tongue midline. Muscle tone normal and there was no focal or lateralized weakness. He walked well independently, ran and jumped and hopped in place. He reached accurately with either hand and without tremor. He is left-handed but he also has good use of his right hand. He stacked five 1-inch cubes using either hand. He built a bridge with cubes when this was demonstrated to him. He climbed onto the examining table without assistance. Deep tendon reflexes 2+. There are no pathological reflexes. * * * Tyler's motor and cognitive development has been delayed but he is improving. At this time I do not find evidence for substantial physical impairment. He appears to have substantial cognitive impairment but he is improving and the ultimate outcome with regard to cognitive function is indeterminate at this time. * * * This addendum follows review of the All Children's Hospital medical record. * * * IMPRESSION: Based on record review there was evidence for perinatal encephalopathy probably due to oxygen deprivation. Tyler's early hypotonia was possibly due at least in part to hypermagnesemia but this does not explain the seizures that occurred on day 1. Also, there was brain MRI evidence for cerebral ischemia consisting of signal abnormality on the diffusion-weighted images and in addition there was MRI evidence for intracranial hemorrhage. Subsequent brain MRIs showed evidence for diffuse white matter injury that probably correlates with the early ischemic change seen on the initial MRI. As previously stated, there is evidence for substantial mental or cognitive impairment and while improving it is likely that this will be permanent. Tyler has secondary microcephaly with postnatal impairment of brain growth, likely due to ischemic brain injury. This is highly predictive of permanent mental or cognitive impairment. Also, as previously stated I did not find evidence for substantial motor impairment based on my examination of March 19, 2009, in spite of Tyler's ischemic brain injury. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable.
Findings Of Fact Michael was born on June 27, 2014, at Jackson Memorial Hospital. Michael was a twin, a multiple gestation, weighing over 2,000 grams at birth. Respondent retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review the medical records of Michael and his mother, Petitioner Maria Jose Morales Cannon, and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period due to oxygen deprivation or mechanical injury. In his report, dated September 10, 2018, Dr. Willis set forth the following, in pertinent part: The mother was admitted to the hospital at about 32 weeks gestational age for steroids to enhance fetal lung maturity and intravenous MgSO4 as neuroprotection to help reduce the risk for intracranial bleed. Her cervix was dilated one centimeter, 20% effaced and posterior, consistent with an unlabored cervix. Primary Cesarean section was done at 32 weeks as pre management plan for TTTS.[2/] Biophysical profiles (BPP) were 8/8 for both fetuses prior to delivery, indicating neither fetus was in distress. Fetal heart rate tracing was stated to be reactive, again suggesting no distress prior to delivery. Michael Cannon was the larger of the twins, designated as twin A. Cesarean delivery was apparently uncomplicated. Birth weight was 2,090 grams. The baby was not depressed at birth. Apgar scores were 9/9/9. Essentially no resuscitation was required with only tactile stimulation and oral suctioning done after birth. * * * In summary, this child was born as twin A at 32 weeks gestational age. Delivery was by elective Cesarean selection. Birth weight was 2,090 grams. The mother was not in labor. Delivery was uncomplicated. The baby was not depressed at birth. Apgar scores were 9/9. No resuscitation was required. The initial platelet count was decreased at 96,000. However, Intracranial hemorrhage would be unlikely with this platelet count. Head ultrasound and MRI were consistent with periventricular leukomalacia. Brain injury was most likely related to prematurity and not oxygen deprivation or trauma at birth. There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma during labor, delivery or the immediate post-delivery period. Brain injury identified by head Ultrasound and MRI was more likely related to prematurity and not oxygen deprivation at birth. In his affidavit, dated November 30, 2018, Dr. Willis affirms, to a reasonable degree of medical probability, the above-quoted findings and opinions from his report. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the pertinent medical records, conduct an Independent Medical Examination (IME) of Michael, and opine as to whether Michael suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Michael’s mother and aunt, and performed an IME on November 14, 2018. Respondent’s Motion for Partial Summary Final Order also relies upon the attached affidavit from Dr. Duchowny, dated November 28, 2018. In his affidavit, Dr. Duchowny testifies, in pertinent part, as follows: In summary, MICHAEL’s examination reveals neurological findings consistent with spastic diparetic cerebral palsy. He evidences dysarthic speech and refractory strabismus. Impairment primarily affecting his right upper extremity. In contrast, Michael has preserved cognitive function and social awareness. Review of MICHAEL’s medical records reveals that his mother’s twin pregnancy was complicated by intrauterine growth retardation and polyhdramnious. Corner over absent diastolic blood flow in MICHAEL’s twin brother prompted decision to deliver both twins at 32 weeks gestation. MICHAEL’s APGAR scores were 9, 9, and 9 at 1, 5 and 10 minutes. MICHAEL remained in the Jackson Memorial Hospital NICU for 28 days and was treated for apnea of prematurity and retinopathy of prematurity. Hyperechoic periventricular regions were noted on head ultrasound studies in the NICU, and a follow-up MR imaging study on January 7, 2015, revealed findings compatible with periventricular leukomalacia. Although MICHAEL has a substantial motor impairment, he is not currently evidencing a substantial cognitive impairment. I further believe that his neurological deficits are a consequence of prematurity and not acquired in the course of labor and delivery. I am therefore not recommending MICHAEL for consideration by the NICA program. In his affidavit, Dr. Duchowny testifies that his opinions are to a reasonable degree of medical probability. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Drs. Willis and Duchowny. Their opinions are credited.
Findings Of Fact Dontae Bess, Jr., was born on July 21, 2011, at Lakeland Regional Medical Center in Lakeland, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Dontae’s medical records. In a medical report dated August 19, 2016, Dr. Willis made the following findings and expressed the following opinion: Spontaneous vaginal delivery was without difficulty. Birth weight was 3,220 grams. The baby was not depressed. Apgar scores were 9/9. No resuscitation was required at birth. The baby went to the normal newborn nursery and had an uncomplicated newborn hospital course with discharge on DOL 2. The child had developmental delays. MRI was done at 5 years of age and was “unremarkable.” In summary, pregnancy was induced for hypertension at term. There was no fetal distress during labor and the baby was not depressed at birth. The newborn hospital course was benign. MRI at 5 years of age did not suggest brain injury. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated January 26, 2017. Dr. Willis’ opinion that there was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or in the immediate post-delivery period is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Dontae. Dr. Sigurdardottir reviewed Dontae’s medical records, and performed an independent medical examination on him on September 21, 2016. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Dontae is a 5-year 2-month-old African-American male who is brought to the visit for an independent medical examination on his developmental delays. On review of his prenatal and birth history, I do not see any evidence of a likely hypoxic injury. He was born healthy and had no complications in the immediate postnatal period. He has then progressed to have mild gross motor delay and a quite significant language delay, although he is at this time in a regular education kindergarten. Neuroimaging did not show evidence of significant ischemic injury. Result as to question 1: The patient is found to have no substantial physical impairment, but to have a substantial language impairment at this time. Results as to question 2: There is no evidence in the medical record review of a substantial hypoxic event during labor or delivery, the infant had no signs of an encephalopathy in the immediate post natal period and no evidence of ischemic injury on neuroimaging. His language delay is not felt to be birth-related. Results as to question 3: Dontae’s prognosis for life expectancy is excellent and for full recovery is good. In light of the above-mentioned details and the lack of any evidence to suggest a birth related hypoxic injury, I do not recommend Dontae being included in the Neurologic Injury Compensation program, and I would be happy to answer additional questions. Dr. Sigurdardottir reaffirmed her opinions in an affidavit dated January 20, 2017. In order for a birth-related injury to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (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. Sigurdardottir’s opinion that while Dontae has a substantial language impairment, he has no substantial physical impairment, 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. Sigurdardottir that Dontae does not have a substantial physical impairment.
The Issue At issue is whether Harper Dean Stever, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Laura Stever and Joseph Dean Stever, Jr., are the natural parents of Harper Dean Stever, a deceased minor, and Mrs. Stever is the Personal Representative of her deceased son's estate. Harper was born a live infant on October 16, 2004, at South Seminole Hospital, a licensed hospital located in Longwood, Florida, and died October 22, 2004. Harper's birth weight exceeded 2,500 grams. The physician providing obstetrical services at Harper's birth was Christopher Quinsey, 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. The hospital and the participating physician complied with the notice provisions of the Plan. § 766.316, Fla. Stat. Harper's birth and newborn course At or about 8:42 a.m., October 16, 2004, Mrs. Stever, with an estimated delivery date of October 10, 2004, and the fetus at 40 6/7 weeks' gestation, presented to South Seminole Hospital with complaints of contractions and blood-tinged fluid discharge since 6:00 a.m. At the time, moderate, regular contractions (at a frequency of 1 1/2 to 2 minutes) were noted; the membranes were intact; vaginal examination revealed the cervix at 2 centimeters dilation, 90 percent effacement, and the fetus at -1 station; and fetal monitoring was reassuring for fetal well-being, with a fetal heart rate in the 150s, with positive long-term variability, accelerations, and no decelerations. Following admission, Mrs. Stever was given morphine with Vistaril for pain (at 9:15 a.m.), and monitoring continued to reveal a reassuring fetal heart rate in the 150s and regular uterine contractions. However, at approximately 9:20 a.m., fetal monitoring began to evidence fetal tachycardia (with a fetal heart rate above 160 beats per minute), with some decrease in variability, and at 10:20 a.m., Mrs. Stever recorded a temperature of 100.2, with a fetal heart rate in the 170s. Mrs. Stever was given an IV for hydration (at 10:30 a.m.), Tylenol for her fever (at 10:40 a.m.), and Ampicillin for presumed early chroioamnionitis (at 10:42 a.m.). Nevertheless, fetal tachycardia continued, and at 11:30 a.m., the fetal heart rate was noted as 180 with decreasing long-term variability. Therefore, since the tachycardia had not responded to the hydration, antibiotics, and Tylenol, and notwithstanding Mrs. Stever's labor had progressed ("to 4 cm dilated, 90% effaced, with a bulging bag"), the decision was made (at 12:05 p.m.) to proceed with a cesarean section because of "extended fetal tachycardia with non-reassuring fetal surveillance." Mrs. Stever was prepared for surgery, and at 12:22 p.m., the external fetal monitor was removed and Mrs. Stever was moved to the operating room, where she was received at 12:27 p.m. Of note, when removed, the fetal monitor revealed a fetal heart tone of 175 to 180 beats per minute, minimal variability, no accelerations, and no decelerations. Of further note, the Intraoperative Nurses Notes reveal a fetal heart tone of 182 beats per minute at 12:36 p.m. (Intervenor's Exhibit 1, page 109.) At 12:43 p.m., the incision was made (surgery started), and at 12:48 p.m., Harper was delivered. According to the medical records, a copious amount of thick meconium stained fluid was extruded through the incision at the time of entry into the uterine cavity, and Harper's head was delivered without difficulty and his nose and mouth were DeLee suctioned by Dr. Quinsey on the abdomen. Then, the nuchal cord was reduced and the rest of Harper was delivered atraumatically, the cord was doubly clamped and cut (so the cord blood could be drawn, and the child's blood chemistry at the time of birth ascertained), and Harper was passed off to the awaiting resuscitation team. Harper was immediately placed in a preheated radiant warmer, dried briefly, and suctioned. Heart rate was initially noted at 100 and Harper was given free flow oxygen. However, he still did not breathe spontaneously, and his heart rate rapidly slowed to 60, requiring Ambu bag and mask, and chest compressions. At 12:50 p.m., with a heart rate still at 60 and Harper's color noted as cyanotic, a "Code Blue 45" was called. At 12:51 p.m., Harper was intubated (with an endotracheal tube), and his heart rate returned to 160 with 40 seconds of chest compressions and ventilation. At 12:55 p.m., heart rate remained at 160, color was noted as pink, and ventilation continued with Ambu and endotracheal tube (ET). By 1:05 p.m., the code ended, and Harper (with a heart rate above 140) was moved to the special care nursery by the code team, with continued ventilation by Ambu and ET. Notably, although successfully resuscitated (revived) in the operating room, the respiratory failure Harper suffered since birth persisted, and he would require continuous respiratory support to survive. Harper's Apgar scores were noted as 1, 5, and 7, at one, five, and ten minutes respectively. (Intervenor's Exhibit 1, page 91.) Cord blood was drawn at 1:00 p.m., and revealed an umbilical artery pH of 7.112, PC02 of 75.3, PO2 of 4.5, 02-SAT of 1.3%, and BE of -8.0. (Intervenor's Exhibit 1, page 9; Intervenor's Exhibit 2, page 677.) The Apgar scores assigned to Harper are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, reflex irritability, muscle tone, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. See Dorland's Illustrated Medical Dictionary, 28th Edition, 1994; Intervenor's Exhibit 1, page 91. Such scores help the physician decide what resuscitative efforts may be required for the baby. (Respondent's Exhibit 1, page 41.) As noted, Harper's one minute Apgar score was 1, with heart rate being graded at 1 (under 100 beats per minute), and respiratory effort (none), reflex irritability (absent), muscle tone (flaccid), and color (central cyanosis) being graded at 0. At five minutes, Harper's Apgar score totaled 5, with heart rate being graded at 2 (above 100 beats per minute), reflex irritability (medium), muscle tone (lazy) and color (peripheral cyanosis) being graded at 1 each, and respiratory effort being graded at 0. At ten minutes, Harper's Apgar score totaled 7, with heart rate, reflex irritability (good), and color (pink) being graded at 2 each, muscle tone being graded at 1, and respiratory effort being graded at 0. (Intervenor's Exhibit 1, page 91.) Following admission to the special care nursery (at 1:05 p.m.) Harper was assessed and placed on a ventilator (full ventilatory support with endotracheal intubation). Newborn assessment noted a heart rate of 140, pale pink color, hypotonic tone, depressed activity, and no cry. Blood sugar at 1:20 p.m., was noted as 51 (hypoglycemic). (Intervenor's Exhibit 2, pages 601 and 675.) Given Harper's acute respiratory failure, an order was entered to transfer Harper to the neonatal intensive care unit (NICU) at Arnold Palmer Hospital for Children and Women, and at 1:50 p.m., the Arnold Palmer Hospital neonatal transport team arrived at South Seminole Hospital to assume responsibility for Harper's care. In the interim, the progress notes reveal Harper to have been fairly stable on the ventilator, with oxygen (02) saturations above 95 percent, color pale pink and responding to tactile stimulation. (Intervenor's Exhibit 2, pages 675.) When the transport team assumed Harper's care at 1:50 p.m., he appeared relatively stable, with a mean blood pressure of 49, and an 02 saturation level of 92 percent. (Intervenor Exhibit 2, page 285.) However, by 2:30 p.m., he appeared dusky with poor profusion, and his 02 saturation level was 85 percent. In response, Harper was given a volume expander (normal saline) and Ambu'd with 100 percent oxygen. However, while his 02 saturation level briefly improved to 99 percent, it remained unstable and over time, despite efforts to stabilize Harper (with Ambu ventilation, sodium bicarbonate for metabolic acidosis, volume expanders, Dobutamine, Fentanyl, Ampicillin, and Gentamicin) it dropped to the 70s (by 3:45 p.m.) and 60s (by 4:40 p.m.), and his mean blood pressure dropped into the 30s. Chest X-ray at 2:37 p.m., was reported as follows: FINDINGS: . . . Lungs are distinctly abnormal showing severe opacification bilaterally in a very diffuse pattern. On the first day of life I would not expect the child to present hyaline membrane disease. I do not see blunting of the costophrenic angles to suggest pleural fluid associated with Beta strep pneumonia. Pneumonia is not ruled out but I am more suspicious of edema from heart disease or meconium aspiration that is quite severe . . . . IMPRESSION: 1. Severe lung opacity bilaterally raising question of edema from meconium aspiration . . . . The transport team left South Seminole Hospital at 4:50 p.m. (with 02 saturations at 65 percent and mean blood pressure at 40) and arrived at Arnold Palmer Hospital at 5:30 p.m. (with 02 saturations at 57 percent and a mean blood pressure of 37). During transport, Harper was Ambu'd with Fi 02 100 percent. On admission to the neonatal intensive care unit at Arnold Palmer Hospital, Harper was noted to be cyanotic (pale gray), with saturations in the 50s despite positive pressure ventilation, poor perfusion, and adventitial breath sounds (rales and rhonchi) over all fields. Diagnoses on admission included hypotension, meconium aspiration syndrome, persistent pulmonary hypertension newborn, pneumonia-congenital, respiratory distress-newborn, and sepsis-newborn. Harper was started on high frequency oscillator ventilation (HFOV) and Dopamine was added to his interventions to support his blood pressure (BP). However, Harper's condition did not improve, and at 7:44 p.m., he was placed on veno-venous extracorporeal membrane oxygenation (V-V ECMO).3 Chest X-ray at 6:14 p.m. (pre-ECMO) revealed "[h]yperinflation, diffuse infiltrates and right pleural effusion," and chest X-ray at 10:27 p.m., revealed "[w]orsening diffuse pulmonary infiltrates, now severe." (Intervenor's Exhibit 2, pages 301 and 297.) Ultrasound Echoencephalogram pre-ECMO was read as normal, with the following findings: The ventricles are of normal size and symmetrical bilaterally. No intracerebral hemorrhages or other intracranial abnormalities are apparent. Harper continued to require increasing pressor support with little effect (i.e., a "mean BP of 40 and arterial saturations of 75% on maximal ventilatory support"). Accordingly, given Harper's continued deterioration, he was changed from V-V ECMO to veno-arterial (V-A) ECMO on October 17, 2004, at 2:15 p.m. Oxygen saturations were noted to rise to 85 percent and blood pressure rose to a mean of 70. Ultrasound Echoencephalogram on October 17, 2004, was normal. On October 18, 2004, Harper remained on V-A ECMO, with saturations in the 90s, and on Dopamine and Dobutamine, with a mean BP of 58. At 7:30 a.m., twitching was noted, consistent with seizure activity, and again at 2:30 p.m., and 10:15 p.m. (Intervenor's Exhibit 2, page 630.) Phenobarbital was prescribed. Ultrasound Echoencephalogram revealed "[s]mall bilateral Grade I germinal matrix hemorrhages." On October 19, 2004, Harper remained on V-A ECMO, with saturations in the mid 90s, and on Dopamine and Dobutamine, with a mean BP of 44-49. Seizure episodes continued, as did treatment with Phenobartital. Ultrasound Echoencephalogram revealed "[s]table bilateral Grade I intracranial hemorrhages," and no new hemorrhages. On October 20, 2004, Harper remained on V-A ECMO, with saturations in the mid 90s, and on Dopamine and Dobutamine, with a mean BP of 40-50s. Seizure activity continued, and Harper was treated with Phenobarbital and Fosphenytoin. Ultrasound Echoencephalogram revealed a "[s]uspected bilateral Grade II intracranial hemorrhage." On October 21, 2004, Harper remained on V-A ECMO, with saturations in the mid 90s, and on Dopamine and Dobutamine, with a mean BP of 50-60s. Some increase in acidosis over the last 24 hours was noted. Seizure activity continued, as did treatment with Phenobarbital and Fosphenytoin. Ultrasound Echoencephalogram revealed "[s]uspect bilateral choroid plexus hemorrhages." On October 22, 2004, neurologic evaluation noted that Harper continued with frequent seizure episodes, and near continuous clonic, jerking activity of the lower extremities. Harper was noted to be acidotic, with generalized edema, jaundice, no spontaneous movement, boggy scalp, and decreased movement. Ultrasound Echoencephalogram revealed "a new 1.5 x 2.1 cm hemorrhagic cyst within the right parietal cerebral parenchyma . . . equivalent to a Grade IV germinal matrix hemorrhage." Given Harper's heparinization4 and contraindications of ECMO with severe intracranial hemorrhage, Harper was removed from ECMO and died soon thereafter, at 12:40 p.m., October 22, 2004. At the time, active diagnoses included hypotension, intraventricular hemorrhage, meconium aspiration syndrome, persistent pulmonary hypertension newborn, pneumonia-congenital, and sepsis-newborn. An autopsy was performed October 22, 2004. The report included the following anatomic findings: RESPIRATORY SYSTEM: Hyaline membrane disease. Acute bronchopneumonia with large areas of necrosis. Fungal lung abscess with secondary cyst formation. CENTRAL NERVOUS SYSTEM: Intraventricular hemorrhage. Arachnoidal congestion and hemorrhage. Cerebellar fungal infarct. Periventricular leukomalacia. PLACENTA (S-04-31353) Large for gestational age placenta, three vessel cord, no acute chorioamnionitis is seen.[5] The likely cause and timing of Harper's brain injury To address the cause and timing of Harper's brain injury, the parties offered the medical records related to Mrs. Stever's antepartal course, as well as those associated with Harper's birth and subsequent development. Additionally, the parties offered the deposition testimony of William D. Rhine, M.D., a physician board-certified in pediatrics, and neonatal-perinatal medicine; Charles B. Brill, M.D., a physician board-certified in pediatrics, and neurology with special competence in child neurology; and Donald C. Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine.6 The medical records and the testimony of the parties' experts have been thoroughly reviewed. Having done so, it must be resolved that among the physicians who addressed the cause and timing of Harper's brain injury, Dr. Rhine was the more qualified to address the issues, and his testimony most candid and compelling.7 Dr. Rhine expressed his opinions on the likely cause and timing of Harper's brain injury, as follows: [Examination by Mr. Grace] A. [Harper suffered] [p]rocesses during birth, including meconium aspiration during labor and delivery, that led to respiratory failure and ultimately to his death. Along with that, that respiratory failure that was obviously caused by . . . meconium in his lungs [, were] bouts of low oxygen and low blood pressure in the first couple hours of life that led to ongoing resuscitative efforts and escalation of care until he finally got onto ECMO bypass. I think before he got onto ECMO bypass, that more likely than not, he had suffered substantial injury from his low oxygen and low blood pressure. Ultimately, that substantial injury was impacted by him being on ECMO and was a significant or proximate cause of his having bleeding into his brain, which led to the decision for the cessation of ECMO and his death thereafter. Q. . . . Let's back up for a minute, Doctor. Did an hypoxic event occur? A. Did a hypoxic event occur? Q. Yes, sir. A. Yes. Actually, I mean several events occurred. Q. Were you talking about several hypoxic events? A. Yes. Q. Will you take me through them and point out each hypoxic event as you have found in the records. A. I think even before birth, there was enough hypoxic event to lead to this child having pulmonary hypertension and passage of meconium. Okay? Q. Uh-huh. A. And then there was a transient hypoxic event right at birth . . . . And then in the hours after he was born, as his care was escalated and they still tried to stabilize his respiratory or pulmonary status, he had basically prolonged episodes of low oxygen and low blood pressure until he finally got onto ECMO in the evening of the 16th of October. * * * Q. Now, with regard to this first hypoxic event that you have identified sometime before birth, as you termed it, did it actually lead to injury to the child? A. Yes. Q. And what was the injury? A. Well, it led to meconium -- the passage of meconium, which led to meconium aspiration and the evolution of pulmonary hypertension. * * * Q. Okay. Was there a brain injury when the child was born? A. I don't know. that? Q. You have no opinion with regard to A. Not to a reasonable medical probability, no. Q. Do you have an opinion, Doctor, if the child did in fact suffer a brain injury during labor and delivery? A. Again, I don't know. Q. Do you have an opinion whether the child suffered a brain injury at any time prior to being placed on ECMO? A. Yes, I do have an opinion. Q. What is that opinion? A. That he did suffer a brain injury in the hours after delivery and before he got put on ECMO. Q. And at what point did the child suffer the brain injury? Are you able to pinpoint that for us? A. Not with precision in terms of time. I can describe the physiologic events that I think were associated with the brain injury, and that itself describes the timeframe. Q. Okay. A. So there is -- first of all, I think that there is a compromise of blood and oxygen flow in the minutes after birth, and there is limited improvement physiologically thereafter, and then within two and a half hours, he starts having the onset of low levels of oxygen and low levels of blood pressure that more likely than not are going to lead to brain -- that did lead to brain injury. Q. And this is two and a half hours after birth, Doctor? A. Yes. Q. Is that the first event you could look at that your opinion would lead to brain injury? A. No. I talked to someone about the compromise right around birth. That -- you know, the fact that he needed to be resuscitated, gets cardiac compressions, gets intubated, et cetera, that's going to be an initial insult. I can't say whether or not that alone, in and of itself, would have caused substantial injury, but it contributed to the injury that I did think became substantial later on that afternoon once his saturations and blood pressures fell again. Q. Okay. And how did it contribute? A. Well, basically, the way that the brain responds to low blood and oxygen levels is that you can have a compromise of oxygen to the tissues, and then if it's repeated and recurrent, you are that much more susceptible to oxygen and blood deprivation within the next couple of hours or so. * * * Q. Do you place any significance on the cord gas ph in terms of ruling in or out neurological injury? A. Yes. Q. Okay. And in terms of this child, what was the cord gas ph? A. . . . [I]t is 7.11. So the one that's collected at 13:07, that one?[8] Q. Yes, sir. A. Okay. . . . assuming it's umbilical artery, the oxygen level is quite low, but it is not profoundly acidotic, and the acidosis is both a mixed, metabolic and respiratory. * * * Q. What about the base excess level, Doctor? A. . . . The base axis is minus eight. Q. So my question is going to be do you place any significance on the base excess level being minus eight? A. Yes. Q. And what significance do you attach to that? A. [F]irst of all, I should say this is very minimal metabolic acidosis. . . . [I]f this is an umbilical arterial gas, there is probably not enough acidosis to be associated with brain injury at that time. Q. And that is at the time the cord gas level is taken, correct? A. Well, it's actually at the time of birth. It took about 19 minutes for them to get over to the cord and to draw it or something. But the cord gas reflects what's happened at birth. * * * Q. At any time in your review of this case -- or did you review the fetal monitor strips? A. Yes. Q. And would you agree that the only abnormality was fetal tachycardia and decreased variability? A. Yes. Q. Can a maternal infection alone cause fetal tachycardia? A. Yes. Q. And do you have an opinion whether maternal infection here caused the fetal tachycardia? A. I think it contributed to it. Q. So you do think there is a maternal infection? A. Well, again, mom had a fever, and I think that that temperature is associated with the fetal -- had at least some contribution to the fetal tachycardia. Q. Okay. Is it still your opinion, though, you don't know one way or the other whether there was a maternal infection? A. Correct. * * * Q. Doctor, a minute ago, you talked about . . . an ischemic event versus an hypoxic event. You talked about narrowing down the definitions, or did I have that wrong? A. No. No. I did mention that. Q. Okay. Tell me what you were referring to with regard to this specific case when you brought that up. A. I just wanted to point out that there are basically two ways of getting brain injury from oxygen deprivation, and that is your oxygen level can be low in your blood [hypoxia]; or you can have not enough blood circulating [ischemia] . . . . Q. And in terms of not having enough blood circulation, do you have an opinion as to whether that was applicable to Harper Stever, the baby in this case? A. Yes. Q. What's that opinion? A. I think that there were two episodes, one when he was first born and had a low heart rate, that is, that there was an abnormal amount of blood being delivered to his brain during that time, and then later on in the afternoon of the 16th, he is profoundly hypotensive, and that, too, is associated with inadequate blood and oxygen delivery to the brain. Q. Okay. Do you see when the child had a low heart rate? A. Yes. Q. When did that occur, specifically? A. At birth. Q. And where is that reflected, Doctor? A. Well, in the code record and by the fact that he got cardiac compressions. Q. Okay. And when the baby was coded and had this low heart rate, you testified to, do you have an opinion on whether it caused brain injury? A. Well, I think what I said before, I think in light of what happened later that day, I think it contributed to it. Whether or not it would have caused it on its own, I don't -- I don't know, and actually, I would dare say probably not. Q. Okay. Then move on, if you will. Tie it into what happened later on that day. A. Well, he continues to have ongoing care to try to stabilize him -- Q. Uh-huh. A. -- in the post delivery period, and that care includes prolonged artificial ventilation, if you will, as well as support of his circulation, and despite that, he has episodes of drops in his saturations and ultimately in his blood pressure, as well, before he goes onto ECMO bypass. * * * Q. And in terms of meconium aspiration, Doctor, do you know whether the baby actually aspirated the meconium in utero or whether it was perhaps after birth? A. It's usually a combination of both. Q. But there is generally no way to know; is that correct? A. Well, severe meconium aspiration, there is usually a component of it that has occurred before a baby is born. Q. Okay. In severe meconium aspiration? A. Yes. Q. In this particular case, would you categorize it as severe meconium aspiration? A. Yes. Q. And what do you base that opinion on, Doctor? A. Well, the fact that there was such respiratory failure, as well as the radiographic changes seen. * * * [Examination by Mr. Blystone] Q. . . . Next, if you would turn to page 285 of the medical record of Baby Stever, which is entitled a "Neonatal Transport Flow Sheet." Do you see that? A. Yes. Q. Okay. Now, correct me if I'm wrong. Is this at the point when the neonatal transport team arrives and takes over the care of Harper Dean Stever until his ultimate delivery to Arnold Palmer Hospital? A. Yes. Q. Is there anything clinically significant to you on this record as far as Harper Dean Stever's vital signs and oxygen saturation level and so forth are concerned? A. Yes. Normal saturation for babies is going to be in the 90s, and yet they can tolerate saturations down to the 80s or even usually into the 70s without sustaining injury to their vital organs, including their brain. However, persistent levels below 70 are going to be associated with neurologic injury, and the fact that the first dip is at 15:15, and at 16:40 drops below 70 and stays below 70 until he's left that unit or, you know, and soon thereafter, he arrives at Arnold Palmer. Q. In your opinion as a neonatologist, would significant brain damage be occurring in Harper Dean Stever when his oxygen saturation levels drop and stay below the 80 mark? A. 70. I'm not going to say 80, but I think staying below 70, also in concert with blood pressures -- again, the normal mean blood pressure for a baby is going to be 40 or more. So when it drops down as low as 30 in conjunction with a saturation of 68 percent, that's likely to be adding to his injury, and that continues on to Arnold Palmer for the next couple hours, as well, before he goes onto ECMO, which sort of is the continuation of those type of vital signs. * * * Q. On page 287 of that same neonatal transport flow sheet, I note that at 15:20, and then again at 15:30, Harper Dean was administered sodium bicarb. What was the reason for that? A. To compensate for acidosis. Q. What type of acidosis? A. Metabolic acidosis. Q. At the time that Harper Dean Stever was being administered sodium bicarb, you stated that he then -- that was because he was having metabolic acidosis at the time? A. Yes. Q. And when a child such as Harper Dean Stever is having metabolic acidosis, that they had risk for brain injury? A. Yes, because that reflects inadequate blood and oxygen delivery to their body. Q. Now, you were pointing out to me before, I think, that Harper Dean Stever's oxygen saturation levels continued to be below the 70 mark by the time of the admission to the neonatal intensive care unit at Arnold Palmer Hospital, correct? A. Correct. * * * Q. And it appears that generally, his 02 saturation levels were staying in the 60s[9] to 60s range. Is that fair to say? A. Yes. There is a brief increase at 17:52 to 17:55. But by 18:10, it's back below 65, where it stays for over half an hour, and then it goes up to 69, 75, and back down to 63, and then 59 percent. Q. And this is from the timeframe of 17:30 through 19:00 on October 16th, correct? A. Correct. Q. And how was Harper Dean Stever's blood pressure doing during that timeframe? A. Well, unfortunately, it was even worse than it had been before, with his blood pressure means falling into as low as 24. Q. So in your opinion as a neonatologist, from the time of Harper Dean Stever's arrival to Arnold Palmer Hospital at 17:30, through this time period, 19:00, represented on this neonatal intensive care flow sheet, was he suffering significant brain damage during that time? A. Yes. Q. And why is that? A. . . . Because there is other evidence -- there is evidence that he still has ongoing metabolic acidosis. He has blood gasses that instead of being only minimally metabolically acidotic, they are going up to the moderate to severe range, and that is after the administration of bicarb, which should, in theory, counteract that metabolic acidosis. So he clearly is having inadequate blood and oxygen delivery. He is clearly becoming acidotic. He clearly has a level of cardiac performance and -- or cardiac poor performance and inadequate oxygen to sustain his vital physiology, including his brain function. And then ultimately, one thing that should be mentioned is that his ultimate autopsy does show periventricular leukomalacia, which would be the type of injury that would arise from this pattern of low blood pressure and low oxygen level that he really doesn't sustain anywhere else during his run, during his hospital course once he gets stabilized by virtue of going on ECMO. * * * Q. Dr. Rhine, had Harper Dean Stever not passed away, do you have an opinion within a reasonable degree of medical probability whether he would have been substantially, permanently mentally and physically impaired as a result of his brain injury to which you testified to? A. Yes. My opinion is that he would have had substantial neurologic impairment. * * * Q. Dr. Rhine, do you have an opinion as to when Harper Dean Stever was undergoing metabolic acidosis to the extent that it was causing significant brain injury? A. As I mentioned before in the afternoon of the 16th after his birth, during that resuscitation and attempted stabilization, I think that's when it occurred. Dr. Willis was of the opinion that the medical records failed to support the conclusion that Harper suffered a lack of oxygen substantial enough to cause brain injury during labor, delivery, or resuscitation immediately following delivery, and that the tachycardia Harper experienced was most likely related to maternal infection. As for the likely cause of Harper's respiratory failure, Dr. Willis was of the opinion it was most likely the result of infection and meconium aspiration. As for whether Harper suffered a significant brain injury after he was transported to the special care nursery, Dr. Willis deferred to the neonatologists and pediatric neurologists. Contrasted with the opinions of Doctors Rhine and Willis, Dr. Brill was of the opinion that Harper suffered two hypoxic injuries. The first being present at birth, and the second an ongoing injury from the time Harper was an hour old (when Dr. Brill notes poor profusion and duskiness is documented) until he died.10 As for the timing of the first injury, Dr. Brill was of the opinion it occurred within 24 hours preceding birth, and probably shortly before delivery. As for the cause of the injury, Dr. Brill was of the opinion it was most likely caused by a profusely hemorrhagic placenta, which resulted in oxygen deprivation (hypoxia) to the baby. Dr. Brill's conclusion that Harper presented with a profound brain injury at birth was premised on "several features: Number one is . . . the placenta is described as profusely hemorrhagic, so that there's a cause for lack of oxygen to the baby; and that event had abnormal fetal monitoring strips; was born with meconium stained fluid; and had very low Apgar to begin with; and persistent apnea." (Intervenor's Exhibit 6, page 19.) As for the cord pH of 7.112, Dr. Brill acknowledged it was only mildly depressed, but was of the opinion it was taken "when the baby was 12 minutes old after he had been resuscitated." (Intervenor's Exhibit 6, pages 22, 23, and 60.) Dr. Brill was also of the opinion that had the cord pH been taken within the first two minutes of life it would likely have been below 7. (Intervenor's Exhibit 6, pages 41 and 42.) Dr. Brill's observations regarding Harper's cord pH are not credible. The Blood Gas Summary reveals that the blood sample was drawn from the umbilical cord, and not the infant. (Intervenor's Exhibit 2, page 677.) The cord pH reflects the infant's pH and other chemistry at birth, not following resuscitation. (Intervenor's Exhibit 5, page 26; Respondent's Exhibit 1, pages 50 and 51.) See also "Blood," "cord b." ("blood contained within the umbilical vessels at the time of delivery of the infant."), Dorland's Illustrated Medical Dictionary, 28th Edition, 1994). Dr. Brill's observations to the contrary detract from the credibility of his testimony regarding the presence of a hypoxic brain injury at delivery. However, except for the onset of the injury, Dr. Brill's observations regarding brain injury following the arrival of the transport team are consistent with those of Dr. Rhine, and are credited. As for the onset of the injury, Dr. Rhine's conclusion that it began at two and a half hours of life (2:30 p.m.) is the more credible. (See Endnote 10.) Given the proof, it is resolved that, more likely than not, Harper did not suffer brain injury due to oxygen deprivation that occurred during labor, delivery, or resuscitation immediately following delivery. Rather, it is most likely that Harper began to suffer hypoxic ischemic brain damage (due to low oxygen saturation levels and low blood pressure) following the arrival of the transport team at South Seminole Hospital, when evidence of profound pulmonary hypotension was noted, at about two and a half hours of life, and that his brain injury progressively worsened until a point in time, likely prior to his placement on ECMO, when the injury was so severe permanent and substantial mental and physical impairment would necessarily ensure. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."11 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it has been resolved that Harper did suffer an injury to the brain caused by oxygen deprivation that rendered him permanently and substantially mentally and physically impaired. However, it was also resolved that Harper's brain injury began about two and a half hours after birth, following the arrival of the transport team at South Seminole Hospital. Nevertheless, Petitioners and Intervenor were of the view that Harper's brain injury occurred "in the immediate postdelivery period," because Harper had required continuous respiratory support since birth. In contrast, NICA was of the view that while Harper required continuous respiratory support, his brain injury postdated the "immediate postdelivery period," and therefore does not qualify for coverage. The ultimate goal in construing a statutory provision is to give effect to legislative intent. BellSouth Telecomms, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003) "In attempting to discern legislative intent, we first look to the actual language used in the statute." Id., at 289. "If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent." Id., at 289. "Ambiguity suggests that reasonable persons can find different meanings in the same language." Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). "If the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words." Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002). In enacting the Florida Birth-Related Neurological Injury Compensation Plan, the Legislature expressed its intent, as follows: It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. § 766.302(2), Fla. Stat. In defining "birth-related neurological injury," the Legislature chose to limit coverage to brain injuries that occurred during "labor, delivery, or resuscitation in the immediate postdelivery period." § 766.302(2), Fla. Stat. However, the Legislature did not define "resuscitation in the immediate postdelivery period," and the term has no technical significance.12 (Respondent's Exhibit 1, pages 43 and 44; Intervenor's Exhibit 5, page 30.) "When necessary, the plain and ordinary meaning of words in a statute can be ascertained by reference to a dictionary." Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001). "Resuscitate" is commonly understood to mean "[t]o return to life or consciousness; revive." The American Heritage Dictionary of the English Language, New College Edition, 1979. Dorland's Illustrated Medical Dictionary, 28th Edition, 1994, defines "resuscitation" as "the restoration to life or consciousness of one apparently dead; it includes such measures as artificial respiration and cardiac massage." "Immediate" is commonly understood to mean "[n]ext in line or relation[;] . . . [o]ccuring without delay[;] . . . [o]f or near the present time[;] . . . [c]lose at hand; near." The American Heritage Dictionary of the English Language, New College Edition, 1979. Finally, "period" is commonly understood to mean "[a]n interval of time characterized by the occurrence of certain conditions or events." The American Heritage Dictionary of the English Language, New College Edition, 1979. Under the statutory scheme then, the brain injury must occur during labor, delivery, or immediately thereafter. Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor, delivery, or immediately thereafter."). Such conclusion is also consistent with "the requirement that statutes which are in derogation of the common law be strictly construed and narrowly applied." Nagy, 813 So. 2d at 159; Humana of Florida, Inc. v. McKaughn, 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("Because of the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughn, 668 So. 2d 974, 979 (Fla. 1996). Under the facts of this case, resuscitation in the immediate postdelivery period ended not later than 1:05 p.m., when the code ended and Harper was transferred to the special care nursery. By then, Harper had been successfully resuscitated (revived), and his circulation restored. However, nothing further could be done to establish spontaneous respirations (until the cause of his respiratory failure could be addressed), and he would remain on respiratory support for the remainder of his life. Harper's subsequent brain injury, which began at about two and a half hours of life, post-dated his "resuscitation in the immediate postdelivery period."
The Issue At issue in this proceeding is whether Karina Zepeda suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Background Karina Zepeda (Karina) is the natural daughter of Luis Zepeda and Dora Zepeda. She was born a live infant on March 26, 1991, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and her birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Karina were Pablo Delgado, M.D., and Gene Burkett, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. The birth of Karina At or about 8:25 p.m., March 25, 1991, Dora Zepeda was admitted to Jackson Memorial Hospital (Jackson Memorial) in active labor. Thereafter, at 11:50 p.m., she suffered an artificial rupture of the membranes and was found to have thick meconium. Subsequently, decelerations were noted and the decision was made to perform a cesarean section as a consequence of fetal distress. The cesarean section was performed, and Karina was delivered at 2:24 p.m., March 26, 1991. The operative report reflects that the following occurred during the course of the procedure: . . . The uterine cavity was then entered and found the amniotic fluid to be full of thick meconium that was aspirated. The incision was extended bilaterally on the myometruim and we proceeded to deliver the fetal head after flexion. Suction was per- formed with the DeLee catheter and at this time, we proceeded to deliver the body of the fetus. As we did this, we found a crypt surrounding the abdomen and the lower back of the fetus. This was occupied by cord, apparently cord tying up on the lower section of the lower section of the back and deep into the body of the fetus. The cord was removed and the fetus was delivered. The cord was then clamped and cut and the body was given to the pediatrician. When delivered, Karina was lethargic, floppy and without spontaneous respiratory effort or heart rate. She was resuscitated with chest compressions, intubated, and placed on a ventilator with 100 per cent oxygen. At birth, her Apgar scores were 1 at one minute, 3 at two minutes, and 4 at five minutes. Following delivery, Karina was transferred to the neonatal intensive care unit where, within twenty-four hours of birth, she was observed to have developed seizures. Karina remained in the intensive care unit for approximately nineteen days, and was discharged from Jackson Memorial on April 19, 1991, to the care of her parents. Following discharge, Karina was apparently followed at Jackson Memorial for, inter alia, hypoxic encephalopathy associated with microcephaly, spastic quadriparesis, mental retardation, language disorder and seizures. Here, the parties have stipulated, and the proof demonstrates, that Karina suffered an injury to the brain at birth caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post-delivery period which resulted in mental and physical impairment. What is in dispute is the degree of impairment suffered by Karina or, stated otherwise, whether her impairments are permanent and substantial, so as to be considered a "birth-related neurological injury" as defined by the Plan. The degree of Karina's impairment On February 1, 1993, upon referral by Children's Medical Services, Karina came under the care of Danilo A. Duenas, M.D., a pediatric neurologist and the associate director of the Department of Neurology, Miami Children's Hospital. As of the date of hearing, Dr. Duenas remained Karina's treating neurologist. At Dr. Duenas' initial examination of February 1, 1993, Karina, then twenty-three months of age, presented with the history heretofore noted and upon examination, Dr. Duenas diagnosed Karina as suffering from microcephaly; mental retardation, moderate to severe; spastic quadriparesis, pseudobulbar palsy; language disorder receptive and expressive; extraocular imbalance/strabismus; seizure disorder; and behavior and attention deficit disorder. Dr. Duenas' finding that Karina suffered from microcephaly reflects that her head had not grown in accordance with a standardized norm and reflects below average brain growth which in Karina's case, more likely than not, resulted from brain injury occasioned by the hypoxic insult she received at birth. Microcephaly is not itself, however, a physical or mental injury, but does portend the possibility that the injury to the brain, which affected its growth, may have been severe enough to affect mental or physical functioning. As for Dr. Duenas' observation of a seizure disorder (epilepsy), such disorder is also, more likely than not, a consequence of organic brain dysfunction occasioned by the hypoxic insult she received at birth. Epilepsy is, however, a physiologic condition, as opposed to a mental or physical condition, although it can, when seizures are severe, have profound mental or physical implications. To date, Karina has not been shown to have suffered any significant mental or physical effects from her seizure disorder. 3/ The remaining deficiencies observed by Dr. Duenas, mental retardation, spastic quadriparesis (weakness of all four extremities), pseudobulbar palsy (impaired function of the tongue and palate), language disorder receptive and expressive, extraocular imbalance/strabismus (deviation of the eye due to lack of muscular coordination) and behavior and attention deficit disorder, represent mental or physical deficiencies occasioned by the hypoxic injury to Karina's brain during birth. Following his examination, Dr. Duenas observed that his findings were consistent with "severe brain dysfunction, probably secondary to hypoxic encephalopathy at birth," but deferred any prognosis inasmuch as each child has a different potential for subsequent development after a neurological insult and, depending on the level of impairment, it is difficult to prognosticate upon the future level of impairment. Given the circumstances, Dr. Duenas recommended an electroencephalogram (EEG) to assess Karina's susceptibility to seizures, and a CT scan to confirm his clinical diagnosis of brain dysfunction and to ascertain how much brain damage could be detected. Dr. Duenas further recommended that Karina continue at Easter Seal Society School, and continue her physical, occupational and speech therapy. Consistent with Dr. Duenas' recommendation, an EEG and CT scan were performed on April 15, 1993. The EEG was abnormal, reflecting electrical abnormalities in the brain, and confirmed that Karina had, and was susceptible to, seizures. The CT scan was also consistent with Dr. Duenas' diagnoses of brain injury in that it found: There is biparieto-occipital changes of cystic encephalomalacia. Atropic changes of the central and cordical type are noted in these regions as well as along the bifrontal regions. There is a suggestion of periventricular leukomulacia. The finding of biparieto-occipital changes of cystic encephalomalacia reflects "that the white matter around the lateral ventricles [has formed] like cysts, like small sacks of empty spaces." The atropic changes in the central and cortical area reflect that brain tissue has been destroyed not only in the deep structures (central) but also the outside of the brain (cortical or cortex). The damage to Karina's brain involves both hemispheres, and is defuse. While Karina clearly suffered a severe injury to the brain by virtue of the hypoxic insult she received at birth, that finding does not compel the conclusion that such injury rendered her permanently and substantially mentally and physically impaired. Indeed, as observed by Dr. Duenas, the relationship between the results of a CT scan and the ability of a child to perform mentally and physically vary from child to child, with some adapting to the injury better than others. Indeed, examination and observation of the child is essential for a physician to reliably associate impairments with an injury depicted on a CT scan. Dr. Duenas neurologically re-evaluated Karina on April 23, 1993. At that time most of her problems persisted; however, he did note improvement in her receptive/expressive disorder because of improved vocabulary, that she was now able to walk, and that while still considered mentally retarded, the degree was rated as moderate. Dr. Duenas recommended Karina continue Easter Seals School, as well as her physical, occupational and speech therapy. Dr. Duenas continued to re-evaluate Karina on a regular basis and noted continuing progress such that by his last evaluation of August 22, 1994, he observed: . . . the mouth including tongue movements, soft palate, posterior pharynx are unremarkable. Examination of the neck was normal. Motor system shows good strength in all extremities. Deep tendon reflexes were equal and symmetric bilaterally. No pathological reflexes . . . Sensory system, pain, touch, proprioception, vibration and position senses within normal limits. Cerebellar function grossly normal finger-to-nose testing and past point. Gait seems to be unremarkable. She is a little spastic in the lower extremities but she keeps fairly good balance. . . . As for Karina's mental status, Dr. Duenas would rate her mildly to moderately mentally retarded. Based on this visit, Dr. Duenas concluded that Karina continues to make progress in her motor development, and that her vocabulary and resultant language continue to improve. Karina's strabismus had also improved to the point that rather than turn her head to one side to view an object through a single eye, she had begun to view objects in a direct and normal manner. In sum, Dr. Duenas, based on his numerous evaluations of Karina, is of the opinion that, although she will continue to suffer some impairment in her mental and physical development, that she is not currently substantially mentally or physically impaired. Moreover, Dr. Duenas foresees that Karina will continue to improve, but was unable to predict the extent of improvement. Apart from Dr. Duenas, Karina was also examined by Michael Duchowny, M.D. Dr. Duchowny, who is Board-certified in pediatrics and neurology with special competence in child neurology and the Director of the Neuroscience Department at Miami Children's Hospital, examined Karina, at the request of NICA, on March 24, 1994. Based on his examination, Dr. Duchowny was of the opinion that Karina understood the examination, the people and her surroundings, exhibited an essentially normal attention span, and behaved appropriately. He did note, however, that Karina was delayed in terms of her expressive language, but felt such impairment was primarily restricted to an inability to express herself and communicate in words, which condition should improve over time. Under the circumstances, Dr. Duchowny was of the opinion that Karina was not substantially intellectually impaired. As for Karina's physical condition, Dr. Duchowny was of the opinion that Karina was not substantially physically impaired. Although he observed some abnormality in muscle tone and coordination, Karina was fully ambulatory, could turn crisply and run easily, moved while she played and moved her hands quite well. In sum, from a physical standpoint, Karina could "virtually do all the things she wanted to do." Under the circumstances, Dr. Duchowny considered Karina's motor impairment as being "mild or at most mildly moderate, but certainly in no way substantial." As to the permanence of her current status, he felt Karina would probably improve further, but how much further he could not predict. In concluding that Karina was not substantially mentally impaired, Dr. Duchowny observed that in the spectrum of children seen with metal impairment, a substantial impairment is generally accepted to refer to patients who fall within the retarded range of functioning, with patients that exhibit an intelligence quotient (IQ) of less than fifty being considered trainable and those that exhibit an IQ under 70 being considered educable. Within that universe, the children that are considered substantially mentally impaired are the retarded, but trainable, and generally exhibit an IQ of less than 50. Here, no IQ tests have been administered to Karina and, due to her age, could not have been administered to produce any reliable results. Accordingly, by necessity, Dr. Duchowny's assessment, like Dr. Duenas' assessment, was based on observation and experience which led him to the conclusion that Karina did not exhibit those characteristics that one would associate with a child that functioned in the substantially mentally retarded range. In concluding that Karina was not substantially physically impaired, Dr. Duchowny observed that children who are substantially physically impaired have a major physical impairment. Examples given were children who were unable to move in a fluid fashion or perform certain functions such as walking or running, and those children who were wheelchair- bound, bedfast, walked with substantial gait disabilities, or lacked the use of arms or hands. In Karina's case, although she has coordination difficulties and some problems with tone, her impairment in Dr. Duchowny's opinion is "quite mild" and she is not "in the same universe as children who have a substantial impairment." In contrast to the expert opinions rendered by Dr. Duenas and Dr. Duchowny, intervenor, University of Miami, offered the opinion of Stuart Brown, M.D., who is also a pediatric neurologist. It was Dr. Brown's opinion that Karina has a permanent and substantial physical and mental impairment; however, unlike Doctors Duenas and Duchowny, Dr. Brown had never examined Karina. Rather, Dr. Brown based his testimony upon a review of the medical records, including the records from Jackson Memorial Hospital on Karina and Dora Zepeda, the records from Baptist Hospital, the records from Miami Children's Hospital, CT scans on Karina, Dr. Duenas' records and deposition, and Dr. Duchowny's report and deposition. Based on his review of the records, it was Dr. Brown's opinion that Karina's brain damage was bilateral and defuse, invading both hemispheres of the brain and was of such magnitude as to result in the liquefaction of certain areas in the parietal/occipital regions of the brain, that have been replaced with large fluid-filled cystic structures. The parietal/occipital regions are responsible for memory, visual motor functions, discrimination and languages; and the bifrontal area is responsible for intellect, judgment, attention span and executive motor functions. Dr. Brown further observed that Karina had a marked lack of normal myelination (myelin being the insulating material within the brain which enhances the transmission of information), which would portend marked impairment and delay in achievement of milestones and skills that would normally enable the child to be socially, intellectually and educationally competitive. Moreover, the structural damage to Karina's brain is permanent. Dr. Brown further observed that Karina's epilepsy will in all likelihood interfere with her performance in that, were she to experience seizures, it would interfere with her school performance, and the likelihood of seizures would preclude her from some occupational opportunities. Moreover, given the serious nature of her condition, there is a small potential that a seizure could kill Karina. Given the circumstances, Dr. Brown is of the opinion that Karina will not outgrow her seizures, and considers her seizure disorder a permanent and substantial mental and physical impairment. Dr. Brown was also of the opinion that Karina was mentally impaired. In this regard, Dr. Brown observed that, although Karina may experience some improvement in her mental functioning, given the fact that she has microcephaly, and given the striking diffuseness and bilaterality of her brain damage, the fact that she is not using sentences at age three and a half, and the attention deficit disorder and seizure disorder which will interfere with her educational process, that Karina's intelligence quotient will fall within the lowest two percentile of the general population. Indeed, Dr. Brown opined that Karina was unlikely to reach language, academic or mental skills of a ten-year-old at anytime in her life and that, in his opinion, she is trainable but not educable. In concluding that Karina was permanently and substantially mentally and physically impaired, Dr. Brown defined permanent and substantial mental and physical impairment as: An acquired injury to the brain which has produced structural damage and has produced a real and true structural injury to [the] brain [which] leads to an enduring, indefinite, lasting injury to the brain which prevents the child from achieving milestones and from being competitive with her peer group in motor, language, intellectual, and social and . . . behavioral aspects. . . . In combination, Karina's findings of microcephaly, epilepsy, retardation, motor delays and language deficits and attention deficit disorder therefore constitute, in Dr. Brown's opinion, a permanent and substantial mental and physical impairment. Resolving the conflict In resolving the conflict between the opinions rendered by Doctors Duenas and Duchowny, compared to the opinions rendered by Dr. Brown, careful consideration has been accorded the medical records in this case, the gravamen and tenor of the physicians' testimony, and the opportunity each physician had to observe and quantify the matters to which they spoke. In this regard, it is noted that Dr. Brown did not examine the child and that, under the circumstances of this case, he could not, based upon the CT scans alone, reasonably opine whether a motor abnormality he might suspect would be present would be mild, moderate or severe. Of further note is Dr. Brown's acknowledgment that there is no impairment in the strength of Karina's upper extremities, and that she can feed herself, use both hands, grasp, manipulate and walk. It is further noted that Dr. Brown agrees that Karina will improve, although the extent is not now known, and that her walking ability will continue to improve. Finally, it is noted that there is a consensus among the physicians that, within their profession, mental and physical impairments are routinely classified as mild, moderate or severe (substantial), although there may be disagreement among physicians at times as to the degree of impairment assigned. Given the circumstances, the opinions of Doctors Duenas and Duchowny are accepted. Accordingly, it must be concluded that the proof fails to support the conclusion that Karina was rendered "permanently and substantially mentally and physically impaired" as a consequence of the hypoxic insult she received at birth.
Findings Of Fact Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” 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. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would be happy to answer additional questions. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
Findings Of Fact Carla Barrientos-Gutierrez was born on April 12, 2013, at Manatee Memorial Hospital located in Braden River, Florida. Carla weighed 3,610 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Carla. In an affidavit dated December 17, 2014, Dr. Willis described his findings as follows: In summary, vacuum assisted delivery resulted in a scalp hemorrhage with significant blood loss and resulting anemia, hypovolemia, hypotension and coagulation defects. Hypovolemia resulted in poor perfusion and multisystem organ failure. E. coli sepsis compounded the complications related to the scalp hemorrhage. The baby suffered brain injury due to these complications. However, the brain injury did not occur during labor delivery or the immediate post-delivery period. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Carla and to review her medical records. Dr. Duchowny examined Carla on October 15, 2014. In an affidavit dated December 17, 2014, Dr. Duchowny opined as follows: In summary, Carla’s neurological examination reveals evidence of a mild to moderate motor disability and language development which is behind age level. There is no focal or lateralizing findings and I was unable to confirm the family’s impression of diminished left-sided motor activity. The medical record review indicates that Carla’s neurological impairments are the result of E-coli, sepsis and meningoencephalitis. She likely had diffuse CNS vasculitis as well. However, there is no indication that Carla’s brain damage resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. The timing of acquisition of her infection is open [sic] a question as she only became symptomatic at 24 hours of age. Should this issue need further examination, input from a pediatric infectious disease consult would be useful. It would be important to review her MRI scans of the brain. However, pending any need for further review, I am not recommending Carla for inclusion in the NICA program. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period, and Petitioners have no objection to the issuance of a summary final order finding that the injury is not compensable under the plan. Dr. Willis’ opinion is credited. There are no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that there is no indication that Carla's neurological injury resulted from either mechanical injury or oxygen deprivation in the course of labor and delivery. Dr. Duchowny’s opinion is credited.
The Issue At issue is whether Aaron Smith, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Dawn Smith and Taryn Smith, are the natural parents and guardians of Aaron Smith, a minor. Aaron was born a live infant on December 29, 1998, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Aaron's birth was Wilford Paulk, 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 (1997).2 Aaron's birth The medical records related to Aaron's birth are meager, but reveal that at or about 6:59 a.m., December 29, 1998, Mrs. Smith (with an estimated delivery date of December 18, 1998, and the fetus at 41 and 4/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Smith's membranes were noted as intact, and contractions were noted at a frequency of 3-6 minutes. Mrs. Smith was administered an epidural anesthesia at 9:30 a.m., and at 10:55 a.m., her membranes were artificially ruptured, with clear fluid noted. Thereafter, at 6:28 p.m., dilation was noted on complete, and at 6:47 p.m., Aaron was delivered, with vacuum assist. At delivery, Aaron breathed spontaneously, and initial newborn assessment revealed no abnormalities. Apgar scores were recorded as 8 and 9, at one and five minutes, respectively.3 Following delivery, Aaron was transported to the newborn nursery, where he was received at 7:30 p.m. Newborn admission assessment, as well as the physician's subsequent assessment on December 30, 1998, did not reveal any significant abnormality, and Aaron was discharged to his mother's care on December 31, 1998. Overall, the medical records related to Aaron's birth do not reveal any evidence of fetal compromise or injury during the course of Mrs. Smith's labor or Aaron's delivery and brief postnatal course at the hospital. Aaron's subsequent development In early February 1999, at five weeks of age, Aaron was hospitalized, with symptoms consistent with the onset of seizure activity, and an electroencephalogram (EEG) revealed "electrographic seizures arising independently out of the left and right hemisphere." At the time, diagnostic evaluation by William Turk, M.D., a pediatric neurologist associated with Nemours Children's Clinic, including a normal cranial MRI scan, failed to reveal an etiology for Aaron's seizure disorder, and he was started on Phenobarbitol. Aaron apparently did well on Phenobarbitol until early March 1999, when his mother noted several events, characterized by staring and repetitive arm jerking on the right side lasting 30 seconds, consistent with the recurrence of seizure activity. At the time, March 3, 1999, Aaron was seen in follow-up by Dr. Turk, whose examination revealed the following: On physical examination, he is a large appearing young man whose weight of 7.5 kilograms is greater than the 95th percentile as is his height of 63.3 m. Head circumference of 42.6 cm continues to track slightly greater than the 98th percentile. His general physical examination was otherwise, unrevealing On neurological examination, his pupils are equal, round and reactive to light. His extraocular movements were full. Fleeting glimpses of his retina and discs were unrevealing. His facial movements were symmetric and his gag was intact. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were diffusely brisk with flexor plantar responses. He withdrew symmetrically to noxious stimuli. No involuntary movements were noted. He would alert, socialize and follow the examiner visually with a responsive smile. His fontanel was soft. Dr. Turk's impression and recommendations were, as follows: Impression: Aaron is a 2 month-old with a partial complex seizure disorder of unknown etiology. He overall, has done well on Phenobarbitol until several recent breakthrough seizures. I suspect his Phenobarbitol level is subtherapeutic given his dose and relatively rapid weight gain. He appears to be doing well developmentally. Recommendations: I feel it would be reasonable to increase his Phenobarbitol to bring him into what will be the therapeutic range . . . . We have asked him to return for a formal follow-up visit in two months. He is a young man who is statistically . . . at significant risk for neurodevelopmental concerns, although he does appear to be doing well in the short run. I have asked his parents to particularly observe him for any evidence of myoclonic seizures. I anticipate when he becomes approximately 6 months of age, we will refer him to a local developmental program for assessment and enrollment. Aaron continued on Phenobarbitol, but was otherwise quite healthy, with apparent normal developmental progress until July 8, 1999, when, at 6 months of age, Dr. Turk noted "emerging developmental concerns." At the time, Mrs. Smith reported that "[i]n terms of his development, he still does not sit, and . . . he has somewhat more difficulty rolling over." On examination, Dr. Turk noted: On physical exam, his weight of 11.3 kg is greater than the 95th percentile, as is his weight of 74.8 kg, and head circumference of 47 cm. He was alert appearing, and at times briefly social . . . . On neurological examination, his pupils are equal, round and reactive to light. His extraocular movements were full. Occasionally, he was noted to have some brief rapid horizontal nystagmus [an involuntary rapid movement of the eyeball] which occurred in primary gaze. No opsoclonus was noted. No other cranial nerve abnormalities were noted. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were 2+ and symmetrical. His plantar reflexes were flexor. He had no tremulousness nor myoclonus. He withdrew briskly and symmetrically to noxious stimuli. He could not sit independently. IMPRESSION: Aaron remains a problematic young man. He has been free of overt partial complex seizures. His nystagmoid eye movements, I suspect, are not representative of subtle seizure activity Over time, I am increasingly concerned that we are seeing the emergence of what will be a pattern of significant developmental delay in this young man. Unfortunately, as you know, this occurs commonly in children with early onset seizure disorders . . . . PLAN: Aaron will continue on his current dose of Gabapentin and Phenobarbital . . . . I feel strongly it would be appropriate for Aaron to see a pediatric ophthalmologist, both for a dilated funduscopic examination to see if his retina can give us any clues as to the etiology of his seizures, as well as evaluate his nystagmoid movements . . . . As recommended, Aaron was seen for an ophthalmologic evaluation on July 20, 1999, by Robert Hered, M.D., a pediatric ophthalmologist associated with Nemours Children's Clinic. Following examination, Dr. Hered concluded that: Aaron has developed pendular nystagmus. The nystagmus is somewhat more rapid than is typically seen with sensory nystagmus. I do suspect problems with the optic nerves, however. His examination suggests moderate bilateral optic nerve hypoplasia [incomplete development of the optic nerve]. I have recommended a follow-up eye examination in 6 months to reassess his vision status and the appearance of his optic nerves. Follow-up eye examination by Dr. Hered on December 14, 1999, confirmed the presence of moderate bilateral optic nerve hypoplasia and, due to a degree of visual impairment, Aaron was referred to the Division of Blind Services. In the interim, a cranial MRI scan on August 6, 1999, ordered by Dr. Turk "to redefine his intracranial anatomy and optic pathway" was normal or, stated otherwise, unrevealing as to the etiology of Aaron's neurodevelopmental difficulties. Specifically, the MRI scan was read, as follows: Comparison with previous assessment dated 2/99. There has been no change in the appearance of the intracranial contents. The supratentorial, as well as the posterior fossa contents are again well delineated. There is no evidence for a mass lesion or shift of midline structures. A structural or signal abnormality cannot be demonstrated. There is no evidence of ventriculomegaly or abnormal increase in extra-axial fluid. Aaron continued to be followed by Dr. Turk at regular intervals, who, apart from developmental delay, noted normal gross motor development. Specifically, Dr. Turk's neurological consultation of May 9, 2001, noted the following: Aaron was seen in follow-up neurological consultation. He is a 2-4/12 year old with developmental delay and seizures. He also has macrosomia. We have followed him and, overall, he continues to be problematic. He has had no behavior suggestive of seizures since last seen . . . . The other issue in this young man is his developmental status. His progress is extremely slow. He has essentially no intelligible speech and extremely-limited social interactions. His mother reports he is extremely ritualistic in his behavior and plays with a very limited repertoire of toys. He does receive OT, PT, and speech therapy at the Lighthouse Center which he attends daily. His review of systems is otherwise noncontributory. There have been no recent psychosocial changes. On physical exam, he was a fussy young man who was whining when I entered the exam room but did have one interval where he appeared relatively calm and content. He had poorly developed social interactive skills and made poor eye contact. He has a large-appearing body with a head circumference of 52 cm, greater than the 95th percentile as is his weight of 17.8 kg. His height of 94 cm is on the 80th percentile . . . . On neurological examination, his pupils were equal, round, and reactive to light. His extraocular movements were full, and he had no apparent nystagmus today. His right disc was pale, as previously noted. His facial movements were symmetrical. He did respond to auditory stimuli, and his gag was present. Motor exam revealed equal and symmetrical muscle bulk, tone, and strength. Deep tendon reflexes were 2+ and symmetrical with flexor plantar responses. His gait was narrow based and steady. He did withdraw briskly and symmetrically to noxious stimuli and no tremulousness was noted. IMPRESSION: Aaron is a 28 month old with a history of developmental delay and seizures. His seizures are well controlled on his current medication. As you will recall, we are in the process of a transition from Tegretol to phenobarbital. Developmentally as this young man has grown older, it is apparent that he has symptoms that may place him on the autistic spectrum; however, as you know, this can be a difficult diagnosis in young children particularly with significant cognitive delays . . . . RECOMMENDATIONS: Aaron's phenobarbital will be decreased to 15/30 mg, and he will continue on his current dose of Tegretol pending [further testing] . . . . We did discuss numerous developmental issues including those of possible autism. He does appear to be well networked into appropriate supportive services, at the present time. As you know, applying a label of autism little alters our approach to management; particularly in young children. Finally, this young man could appear to be an appropriate candidate to have a pediatric genetic consultation. He does have some dysmorphic features including a bifid uvula, he has significant developmental delay, and mild macrosomia . . . . Of note, subsequent genetic testing failed to reveal evidence of significant abnormalities or an etiology for Aaron's neurodevelopmental difficulties. In so far as the record reveals, Dr. Turk last saw Aaron on December 30, 2002, and, pertinent to this case, reported the results of his consultation, as follows: Aaron was seen in neurological follow up consultation. He is an extremely complex 4- year-old with multiple neurodevelopmental concerns who I have not seen in nearly one year. When we last saw him in February, there had been a question of a recent subtle seizure in the setting of a febrile illness. Since that time, he has had no seizures . . . Developmentally, he is making some progress. He still has many self-stimulatory behaviors and no intelligible speech. He does have significantly improved social interactive skills. His mother reports he has been diagnosed as having PDD. He receives physical, occupational and speech therapy at the Lighthouse Center. There is no clear history of any regression. Behaviorally, he is extremely active and very rigid, strongly preferring routines . . . . On physical examination, he was an active young man. His weight is 22 kg which is greater than the 95th percentile. Height was 106.7 cm and is on the 85th percentile. His head circumference is 55 cm which is slightly greater than the 98th percentile where it was previously been noted General physical examination revealed a somewhat large-appearing cranium with slightly coarsened features . . . . On neurological examination, he had full extraocular movements. Despite an extensive effort, I could not adequately visualize his discs. Facial movements and sensation, auditory localization, gag, palate and tongue movements were normal. Motor exam revealed equal and symmetrical muscle bulk, tone and strength. Deep tendon reflexes were 2+ and symmetrical. Plantar responses were flexor. No tremor, dysmetria or ataxia was noted. He did have, at times, prominent self- stimulatory behaviors. His gait was steady. He had no intelligible speech. He would make occasional eye contact with the examiner. IMPRESSION: Aaron is a 4-year-old with a history of significant developmental delay. Overall, as we have observed this young man, he appears to fall in the autistic spectrum. He also has a septooptic dysplasia and apparently has had no evidence of an endocrinopathy. He has had seizures that are now well-controlled with his last event being one year ago . . . . Notably, neither Dr. Turk nor any other physician who attended Aaron has expressed any opinion regarding the etiology of his neuodevelopmental difficulties or the significance, if any, of his mental and physical limitation. The opinions of Doctors Willis and Duchowny Following the filing of the claim in this case, NICA provided copies of the medical records related to Aaron's birth to Donald Willis, M.D., an obstetrician who practices maternal- fetal medicine, to review and to resolve whether, in his opinion, the records supported a conclusion that Aaron suffered an injury during the course of birth. NICA also arranged for Michael Duchowny, M.D., a pediatric neurologist, to examine Aaron and to resolve whether, in his opinion, Aaron's neurologic presentation was consistent with a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during birth, and whether Aaron was permanently and substantially mentally and physically impaired. Here, the opinions of Doctors Willis and Duchowny, in the form of an affidavit and report by each, Respondent's Exhibits 3 and 4, respectively, are hearsay and, as noted in Endnote 1, were received into evidence subject to the limitations of Section 120.57(1)(c), Florida Statutes (2003). ("Hearsay evidence may be used for the purposes of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Dr. Willis' opinion, that "[t]here was no apparent obstetrical incident that resulted in this child's injury," is consistent with the conclusion one would draw from the medical records and to that extent is corroborative or cumulative. Dr. Duchowny's opinion, that "Aaron's neurologic examination reveals findings consistent with childhood autism," is likewise corroborative or cumulative of the opinion of Aaron's treating pediatric neurologist; however, Dr. Duchowny's opinion that childhood autism is developmentally based, and begins in intrauterine life, prior to the onset of labor and delivery, is not corroborative of any competent proof and cannot support a finding of fact. As for Aaron's difficulties, Dr. Duchowny's neurologic evaluation is consistent with the conclusions reached by Dr. Turk, but, like Dr. Turk, he does not express an opinion as to the significance of Aaron's neurodevelopmental difficulties. 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. See also §§ 766.309 and 766.31, Fla. Stat. Here, Mrs. Smith did not dispute Aaron's autistic diagnosis, but was concerned that "the seizure activity he experienced through the first year of his life probably caused a lot of developmental delay." (Transcript, page 10) Mrs. Smith also notes that during delivery, her "blood pressure and heart rate went down really fast and so did Aaron's[,] . . . at that point it was really crucial for Aaron to be delivered [,] . . . his head was in the birth canal for about a minute and a half before they could find the . . . vacuum that would work to pull him out [,] . . . and when he came out he was blue . . . [a]nd it took . . . a few seconds for him to even come around and start to cry." (Transcript, pages 10 and 11) Notably, Mrs. Smith did not offer an opinion as to whether the events of labor and delivery caused an injury to Aaron's brain or spinal cord and, if she had done so, any such testimony would have been legally insufficient to support a finding that Aaron suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor, delivery, or resuscitation. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition is not readily observable.") Moreover, Mrs. Smith offered no testimony regarding the significance of Aaron's neurologic difficulties. Consequently, since the record fails to contain competent proof that Aaron suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period . . . that rendered . . . [Aaron] permanently and physically impaired," the proof fails to support the conclusion, as appears more fully in the Conclusions of law, that Aaron suffered a "birth-related neurological injury," as required for coverage under the Plan. § 766.302(2), Fla. Stat.
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.
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).
