The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, 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.1 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
Findings Of Fact Mia Rodriguez was born on September 29, 2008, at Jackson South Community Hospital in Miami, Florida. Mia weighed 3,230 grams at birth. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Mia. In an affidavit dated August 24, 2012, Dr. Willis described his findings as follows: [L]abor was complicated by infection, chorioamnionitis. Fetal heart rate monitoring during labor did not suggest any significant fetal distress. The baby was not depressed at birth. Apgar scores were 9/9. Newborn hospital course was uneventful. Within one year of age the child demonstrated neurologic abnormalities and was diagnosed with cerebral palsy. MRI showed a porencephalic cyst. This child has clinical and MRI evidence of brain injury. However, review of the medical records does not suggest the brain injury was the result of oxygen deprivation or mechanical trauma during labor, delivery of [sic] 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 delivery or the immediate post delivery period. In his affidavit, Dr. Willis summarized his opinion as follows: [I]t is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in the Hospital. Further, in that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediately post-delivery period in the Hospital, then accordingly, there was no causal event which would have rendered MIA RODRIGUEZ permanently and substantially mentally and physically impaired as a result of same. NICA retained Michael S. Duchowny, a pediatric neurologist, to examine Mia and to review the medical records of Mia and her mother, Ms. Calderon, to determine whether Mia suffers from an injury which rendered her permanently and substantially mentally and physically impaired and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. In an affidavit dated August 27, 2012, Dr. Duchowny stated: I evaluated MIA RODRIGUEZ on July 25, 2012. . . . In SUMMARY, Mia's neurological examination is significant for a mild to moderate left spastic hemiparesis affecting the arm greater than the leg. There is no evidence of a visual field deficit and her higher cognitive function is assessed at age level. The medical records sent on June 19, 2012 revel that the mother was febrile in labor and diagnosed with chorioamnionitis. She was placed on triple intravenous antibiotics at Jackson South Hospital. Apgar scores were 9 and 9 at 1 and 5 minutes and there was no evidence of postnatal complication. Placental pathology reveals findings consistent with a 3rd trimester placenta but findings consistent with chorioamnionitis were not reported. I do not believe that Mia should be considered for compensation within the NICA statute. She has normal mental functions for age and there are no findings from her history to suggest that hemiparesis was a consequence of either mechanical injury or oxygen deprivation in the course of labor or delivery. More likely, Mia's hemiparesis is due to a right porencephalic cyst which was likely acquired due to cerebrovascular accident in utero prior to the onset of labor. As such, it is my opinion that MIA RODRIGUEZ'S left hemiparesis is not due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of MIA RODRIGUEZ. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Mia did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery period are credited.
The Issue At issue in this proceeding is whether Katherine E. Shearl, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings 1. Katherine E. Shearl (Katherine) is the natural daughter of Barbara Jacobs. She was born a live infant on June 25, 1990, at HCA Northwest Regional Hospital, a hospital located in Margate, Broward County, Florida, and her birth weight was in excess of 2500 grams. 2. The physician providing obstetrical services during the birth of Katherine was Jeffrey Schwartz, M.D., who was not, at the time, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Prenatal Care 3. Ms. Jacobs’ prenatal care was provided by Lherisson Domond, M.D., who was, at all times Material hereto, a participating physician in the Plan. 4. Ms. Jacobs fist sought prenatal care from Dr. Domond on March 29, 1990, and saw him on four occasions thereafter prior to June 25, 1990. Her prenatal course was uneventful, and her estimated date of confinement was established as July 2, 1990. 5. On the morning of June 25, 1990, Ms. Jacobs, accompanied by her boyfriend, Richard Shearl, the father of Katherine, drove 3 to Dr. Domond’s office for the purpose of picking up a prescription for a toothache Ms. Jacobs had been suffering. Upon arrival at Dr. Domond’s office Mr. Shearl went inside to pick up the prescription and while he was gone Ms. Jacobs, who was waiting in the car, suddenly experienced profuse vaginal bleeding. 6. Thereafter, Ms. Jacobs entered Dr. Domond’s office, at which time she continued to hemorrhage significantly. Dr. Domond comforted Ms. Jacobs and monitored the baby with a fethoscope, while an emergency call was placed to 911. Ms. Jacobs was not in labor at the time and Dr. Domond did not conduct a pelvic examination or render any specific gynecological or obstetrical services to her because he was of the opinion that she had sustained an abruption of the placenta. 7. Ms. Jacobs was transported by ambulance to HCA Northwest Regional Hospital, the closest facility to Dr. Domond’s office, and Dr. Domond followed. Dr. Domond did not, however, have staff privileges at that hospital and he did not render any medical services to her in the hospital. Significantly, Dr. Domond remained at the nurses’ station, did not enter the delivery room, and did not participate in the delivery or the provision of any medical care for Ms. Jacobs or Katherine while they were patients in the hospital. 8. Upon arrival at the hospital Ms. Jacobs continued to bleed, but her membranes were intact. She was diagnosed with vaginal bleeding, with deceleration of fetal heart rate, and an emergency caesarian section was performed. The physician providing such services, as heretofore noted, was Dr. Jeffrey Schwartz. The post-operative diagnosis reflected vaginal bleeding-decelerations of the fetal heart rate, abruption of the placenta, and nuchal cord X2.
Conclusions For Petitioner: Barbara Jacobs 609 Northeast ist Street Pompano Beach, Florida 33060 For Respondent: David W. Black, Esquire Frank, Effman & Weinberg, P.A. 8000 Peters Road Plantation, Florida 33324
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v, Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 10
Findings Of Fact Jayden was born on September 20, 2011, at Jackson North Medical Center. The subject Petition was filed on June 25, 2018, which is more than five years after Jayden’s birth. Dr. Vaunrance Benjamin was the physician providing obstetric services and who was present at Jayden’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Record’s Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Benjamin did not pay the five thousand dollar ($5,000.00) assessment prescribed in section 766.314(4)(c), Florida Statutes, required for participation in the Plan. Mr. Daughtry’s affidavit further provides that Respondent has no records to suggest that Dr. Benjamin is otherwise exempt from payment. To the contrary, Dr. Benjamin paid the two hundred fifty dollar ($250.00) assessment required by section 766.314(4)(b)1. for non- participating, non-exempt licensed physicians. Dr. Benjamin was not a participating physician in the Plan at the time of Jayden’s birth.
Findings Of Fact Trinity Kouame was born on January 31, 2012, at Tampa General Hospital in Tampa, Florida. She weighed 2,955 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records of Trinity. In a report dated November 18, 2013, Dr. Willis set forth his findings as follows: The fetal heart rate (FHR) monitor tracing on admission to the hospital showed a fetal tachycardia of 180 bpm and decreased FHR variability. Regular uterine contractions were present every 2 to 3 minutes, consistent with labor. A FHR deceleration occurred about one hour after hospital admission with FHR dropping to 95 bpm. A persistent irregular FHR pattern continued with the FHR remaining below 120 bpm until the monitor was removed, which was about 40 minutes after the FHR deceleration. Emergency Cesarean section was done for an abnormal FHR pattern. Birth weight was 2,995 grams. The newborn was depressed at birth. Apgar scores were 0/3/5. Umbilical cord blood gas was abnormal and consistent with acidosis with a pH of 6.86 and a base excess of -14. The baby was limp at birth with spontaneous respiratory effort. Bag and mask ventilation was started. No heart rate could be identified at 30 seconds after birth. Chest compressions began at 60 seconds after birth. At 90 seconds the baby was intubated. A heart rate of >100 bpm was noted at 3 minutes of life. Respiratory distress worsened. At 7 minutes after birth the oxygen saturation was only 65%. The baby was transported to NICU. Hypoxic ischemic encephalopathy was clinically suspected. The baby was managed with controlled hypothermia. Seizure activity was present a <12 hours of life. EEG on DOL 2 confirmed seizure activity. The baby was not extubated until DOL 7. MRI on DOL 11 showed cerebral infarcts, consistent with global hypoxia. In an affidavit dated December 5, 2013, Dr. Willis opined as follows: It is my opinion that in summary, labor was complicated by an abnormal FHR pattern. Emergency Cesarean section delivery was done with a depressed newborn. Umbilical cord pH was only 6.86. Resuscitation was required, including intubation and chest compressions. Seizure activity was present by 12 hours of life. MRI on DOL 11 was consistent with global hypoxia. As such, it is my opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continued into the immediate post delivery period. The oxygen resulted in brain injury. NICA retained Michael S. Duchowny, a pediatric neurologist, to review Trinity’s medical records and to examine her. He performed a neurological evaluation on Trinity on November 20, 2013. On December 5, 2013, Dr. Duchowny executed an affidavit which stated: It is my opinion that TRINITY’s neurological examination reveals evidence of substantial mental and motor impairment consistent with global developmental delay. Trinity’s examination demonstrates spastic quadriparesis, microcephaly, cortical visual impairment, and absence of communication or socialization skills. She additionally has a long standing history of medical resistant seizures. A review of medical records sent on November 7, 2013 confirms her mother’s recall of a with cerclage problem prenatally. The cerclage was removed on January 26, but a stitch was left in place and the pregnancy was complicated by significant hemorrhage. Apgar scores were 0, 3, & 5 at 1, 5, and 10 minutes and a cord arterial pH was measured at 6.86. Trinity was delivered at Tampa General Hospital and immediately placed in a hypothermia protocol for 72 hours. Seizures were noted after the day of birth. An ultrasound of the brain performed on February 3rd was normal but an MRI scan on February 12th revealed multiple areas of infarction involving the corpus callosum, basal ganglia, internal capsule and periventricular white matter with widespread diffusion abnormalities in the cerebral hemispheres. These findings are consistent with hypoxic ischemic damage. As such, it is my opinion that based on the neurological examination and record review, I believe that TRINITY should be considered for compensation with the NICA program as she has a substantial mental and motor impairment resulting from a brain injury due to oxygen deprivation in the course of labor and delivery. Her findings are in all likelihood permanent and her prognosis is extremely guarded. Should she be accepted into the NICA program, I believe that her lifespan prognosis includes another 20 years. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of either Dr. Willis or Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that Trinity did suffer a neurological injury due to oxygen deprivation during labor and delivery are credited. Additionally, Dr. Duchowny’s opinion that Trinity has both a substantial mental and motor impairment is also credited.
