The Issue At issue in this proceeding is whether Hawke Carter, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Contrasted with the dearth of proof offered by Petitioner, Respondent offered the opinions of Michael S. Duchowny, M.D., a physician board-certified in pediatric neurology, and Charles Kalstone, M.D., a physician board- certified in obstetrics and gynecology. It was Dr. Duchowny's opinion, based on his neurological evaluation of Hawke on July 26, 2000 (at 2 1/2 years of age) and his review of the medical records regarding Hawke's birth, as well as the opinion of Dr. Kalstone, based on his review of the medical records, that Hawke's current neurological condition (which reveals evidence of severe motor and cognitive deficits) did not result from oxygen deprivation, mechanical trauma or any other event occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Rather, it was their opinion that Hawke's disabilities are developmentally based and associated with a congenital syndrome, genetic in origin. Given Hawke's immediate perinatal history, which evidences an uncomplicated labor, delivery, and immediate post-partum period, as well as evidence of congenital heart disease, a diagnose of DiGeorge syndrome (confirmed by positive FISH analysis) and dysmorphic (malformed) features, the opinions of Doctors Duchowny and Kalstone are rationally based and supported by the record. Consequently, their opinions are credited, and it must be resolved that Hawkes' disability is associated with genetic or congenital abnormality, and is not related to any event which may have occurred during the course of his birth.
Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
The Issue The issue in this case is whether Jacob McGowan (Jacob) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jacob was born on July 2, 2015, at Shands at the University of Florida (Shands), Gainesville, Alachua County, Florida. The pregnancy, labor, and delivery of his mother, Christy Gonzalez, were managed by employees of UF Health Physicians and employees of Shands. At all times material, both the hospital and the physicians group were active members under NICA pursuant to sections 766.302(6) and (7). Christy Gonzalez, age 32, presented to Shands on July 1, 2015. This was her second pregnancy. Ms. Gonzalez's prior pregnancy resulted in an emergency cesarean section at 37 weeks after a failed induction/arrest of labor due to gestational hypertension. Based on orders given by OBGYN Georgia Graham, M.D., Christy Gonzalez was admitted to the Labor and Delivery Suite at approximately 12:05 p.m. Ms. Gonzalez was started on Pitocin at 2:47 p.m. for induction/augmentation. Labor progressed slowly over the next approximate 30 hours during which time Ms. Gonzalez continued on Pitocin and exhibited several periods of ongoing and apparent uncontrolled maternal hypertension. Fetal heart monitoring started at 8:13 a.m. on July 1, 2015, and, as labor progressed, the fetal heart rate pattern demonstrated accelerations, and late and early/variable decelerations. The fetal heart rate reached 90 and below at numerous points throughout the day on July 1, 2015, including at 9:34 a.m., 9:54 a.m., 11:04 a.m., 11:10 a.m., 1:05-1:48 p.m. (multiple decelerations), 2:11-2:15 p.m., 2:16-2:18 p.m., 2:31 p.m., and 9:36-9:38 p.m. On July 2, 2015, the fetal heart rate continued to demonstrate accelerations and decelerations with "High FHR" noted at 8:56 p.m. (156/67), as well as 9:15 p.m. and 9:21 p.m. The fetal monitor strips indicate prolonged periods of fetal distress throughout this long period of labor. At approximately 11:00 p.m. on July 2, 2015, Ms. Gonzalez was taken into the operating room for emergency cesarean section due to decreased variability and repetitive decelerations in the fetal heart rate. Jacob was born a live infant at 11:42 p.m. on July 2, 2015. Jacob was a single gestation, weighing 4,366 grams at birth. Jacob was delivered by Dr. Anushka Chelliah, who was a NICA participating physician on July 2, 2015. Petitioner contends that Jacob suffered a birth-related neurological injury and seeks compensation under the NICA Plan. Respondent contends that Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2). Jacob was born via cesarean section secondary to failed induction and vaginal birth after cesarean section, and non- reassuring fetal heart rate tracing and nuchal cord. Jacob was delivered with no respiratory effort and a heart rate less than 60. Post-birth resuscitation included tactile stimulation, intubation, suctioning, and positive pressure ventilation. His Apgar scores were 1 at one minute, 3 at five minutes and 4 at 10 minutes. Physical examination at birth revealed he was pale, had poor tone and negative grasp, and poor moro and suck reflexes. Following color change and rise in his heart rate and increasing oxygen saturations, Jacob was transferred to the neonatal intensive care unit (NICU) for further management. Initial assessment of Jacob included intrapartum fetal asphyxia, chorioamnionitis affecting fetus or newborn, meconium aspiration, injury to scalp secondary to birth trauma, respiratory failure of newborn, and HIE (hypoxic-ischemic encephalopathy) for which HIE protocol for cooling was initiated. Upon arrival to the NICU, Jacob was initially placed on a conventional ventilator with oxygen saturations in the upper 80s. He was quickly transitioned to a high frequency ventilator/oscillator with excellent response. Jacob’s initial blood gas showed good ventilation and medical personnel were able to sequentially wean his amplitude, and he was started on 100-percent oxygen. He was passively cooled until three hours of life when active cooling was started. By 12:46 a.m., physical examination showed a more reassuring neurological examination, although high risk for seizures and neurologic sequelae was noted. Physical examination at four hours of life revealed Jacob was pink, alert, reacting appropriately to stimulation, reactive to light, had a positive suck reflex, gag reflex, mildly increased tone in all extremities, reflexes of 3+ in his lower extremities, 2+ in his upper extremities, slow grasp in feet and brisk grasp in hands. Jacob was discharged from the hospital on August 10, 2015 (day of life 39). His hospital course was complicated by glucose and electrolyte derangements, adrenal hemorrhage, seizures, hypotension, coagulopathy, E coli sepsis with presumed meningitis and poor feeding. The hospital discharge summary reflects that he was actively moving all extremities, had received antibiotics secondary to E coli sepsis and suspect meningitis, was weaned from the ventilator to a continuous positive airway pressure machine (CPAP) at five days of life and had been stable on room air since July 11, 2015, was discharged with 10 mg of phenobarbital every 12 hours, that a physical exam revealed a mildly hypotonic normal male and that he had been on full oral feeding since August 3, 2015, with an appropriate weight gain pattern at discharge. The neurological status section of the hospital discharge summary reflects that Jacob's initial MRI on July 6, 2015, showed evidence of frontal and occipital cortical and subcortical injury globally. A repeat MRI on July 12, 2015, showed improvement in cortical injury with some evidence of injury over the head of the left caudate. He initially had seizure activity on EEG and was loaded with phenobarbital. The last two continuous EEGs on July 11, 2015, and July 16, 2015, however, showed no seizure activity, and the plan was to allow him to outgrow his phenobarbital dose. On August 12, 2015, Jacob presented to his pediatrician for a well child visit. At this time difficulty breast feeding was reported by the mother. The pediatrician noted "no obvious developmental delays or difficulties" and "great tone." Counseling was given on breast feeding and feeding, and orders were given for evaluation and treatment by ophthalmology and occupational therapy. On August 24, 2015, Jacob presented to his pediatrician for sores in his mouth and feeding problems, and fussiness with spit up and vomiting in preceding days. He was on no medications at this time. His physical exam was normal. Neurological exam was also normal with present and normal newborn reflexes noted. "Great weight gain" was noted. Counseling was given concerning gastroesophageal reflux disease (GERD) and feeding. On September 3, 2015, Jacob presented to his pediatrician for a well child visit. At this time, his mother was curious as to whether he needed therapy for motor development. He was noted to be feeding well and complete resolution of his GERD symptoms was noted. Medications at that time included only ranitidine syrup (a stomach acid reducer). All areas of development were noted to be normal for his age and a physical examination, including neurological examination, were also normal. The pediatrician noted in assessment that although the mother reported a diagnosis of brain damage, her concerns regarding motor skills were not apparent, as Jacob was noted to be moving well, trying to roll, could lift his head, and was grasping a rattle in his stroller--all of which were noted to be "very impressive for 2 months." On October 29, 2015, Jacob presented to his pediatrician with complaints of right ear pain and discharge, low-grade fever, tugging at his ear, and fussiness. Medications at this time included only ranitidine syrup. A physical exam was normal with the exception of crusty discharge noted in his ears. He was prescribed antibiotics and ranitidine was refilled. On November 10, 2015, Jacob presented to his pediatrician with complaints of congestion and ear drainage. There were no concerns with Jacob's feeding at this time, and he was noted to eat baby food and use a bottle. Medications at this time included only ranitidine syrup. His physical exam was normal with the exception of erythematous noted in both ears. Antibiotics were prescribed. On November 23, 2015, Jacob presented to his pediatrician for a well child visit. At this time Jacob was taking ranitidine daily for GERD and was in physical therapy/occupational therapy for delayed milestones and trouble sucking. He was noted to be eating solid foods since three months of age, eating baby food, and using a bottle. Ranitidine was refilled. "All areas of development are appropriate for age" was noted. A physical exam was normal. Plans for future care included continued use of ranitidine for GERD, continued therapies for delayed milestones, and a referral to otolaryngology for audiometry. On January 6, 2016, Jacob presented to his pediatrician for a six-month follow-up visit. At this time it was noted that he was getting occupational and physical therapy weekly. It was also noted that he had been diagnosed with hand, foot, and mouth disease and had spots in his throat and discharge from his right ear. The only medication at this time was ranitidine, which was refilled. No concerns with his nutrition were noted. Developmental history testing revealed a “pass” in all areas, except difficulty rolling left to right and sitting alone. Allergic rhinitis symptoms were noted, however, a physical exam was normal. Plans for future care on this visit included referral for a failed hearing screening, continued ranitidine, and continued occupational therapy. At the request of NICA, Donald C. Willis, M.D., who is board-certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E. In his report dated August 10, 2016, Dr. Willis opined that, [t]here 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. The oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the brain injury. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E, and performed a thorough examination of Jacob on August 31, 2016. Dr. Sigurdardottir's report, dated August 31, 2016, reveals that Jacob's mother gave an "excellent history and timeline of the pregnancy with Jacob, his birth, and aftermath." Jacob's developmental history is reported by Dr. Sigurdardottir to include walking independently between 11 and 12 months of age; speaking five words; and report by mother of some hand tremors when reaching for objects. Jacob is noted to have been weaned from phenobarbital at six months of age and he has had no further seizure activity. Dr. Sigurdardottir's neurological exam revealed a pleasant and interactive boy interested in his surroundings. His motor exam revealed symmetric, normal muscle tone and equal use of both extremities. His gait was symmetric and seemed age appropriate. His reflexes were present and at times slightly increased, but never spread from right to left. Balance and coordination were noted to be difficult to fully assess, but seemed to be within normal limits for his age. He manipulated toys in a conventional manner with no autistic characteristics or repetitive behaviors seen. Dr. Sigurdardottir noted that Jacob had made a remarkable recovery and that there were no obvious abnormalities noted upon neurologic exam. Dr. Sigurdardottir concluded her report with her opinions that, The patient is found to have no substantial physical and/or mental impairment at this time. Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related. At this time, Jacob's prognosis for life expectancy and full recovery is good. Petitioner did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
Findings Of Fact Asher was born on April 20, 2017, at Memorial Hospital located in Pembroke Pines, Florida. Upon receiving the Petition, NICA retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Asher’s case. NICA sought to obtain an opinion whether there was an injury to Asher’s brain or spinal cord at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period, and whether that injury rendered Asher permanently and substantially mentally and physically impaired. Dr. Duchowny reviewed Asher’s medical records, as well as examined Asher on October 10, 2018. Dr. Duchowny opined, within a reasonable degree of medical probability: [I]t is my opinion that ASHER’s neurological examination reveals neurological findings consistent with a mild motor impairment primarily affecting his right upper extremity. In contrast, Asher has preserved cognitive function and social awareness. He evidences slightly decreased muscle tone in the right distal upper and lower extremities and slightly increased deep tendon reflexes. As such, it is my opinion that despite ASHER’s abnormal MR imaging studies at birth which document prominent hemorrhagic infarction in territories supplied by the left middle and posterior cerebral arteries with a smaller region of right middle cerebral artery infarction, and bilateral parieto-occipital areas of increased signal, he has recovered to a point where he no longer evidences either substantive mental or physical impairment. Based upon my evaluation and record review, as ASHER is developing normally, I am not recommending him for acceptance into the NICA program. A review of the records filed in this matter reveals no contrary evidence to dispute the findings and opinion of Dr. Duchowny. His opinion is credible and persuasive. Based on the opinion and conclusion of Dr. Duchowny, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed the Motion for Partial Summary Final Order asserting that Asher has not suffered a “birth-related neurological injury” as defined by section 766.302(2). Petitioners do not oppose NICA’s motion.
The Issue At issue in this proceeding is whether Morgan Wilson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioners, Tracie Wilson and James Ray Wilson, are the natural parents and guardians of Morgan Wilson. Morgan was born a live infant on December 12, 2000, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Morgan's birth was Martin Garcia, 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. Morgan's birth At or about 7:29 a.m., December 12, 2000, Mrs. Wilson (with an estimated date of delivery of December 23, 2000, and the fetus at 38 3/7 weeks gestation) presented to Baptist Medical Center, in labor. At the time, Mrs. Wilson's membranes were noted as intact, and mild to moderate uterine contractions were noted at a frequency of 2-4 minutes. Fetal monitoring revealed a reassuring fetal heart rate, with a baseline of 150-160 beats per minute, and the presence of fetal movement. At 9:45 a.m., Mrs. Wilson's membranes were artificially ruptured, with meconium stained amniotic fluid noted. At the time, vaginal examination revealed the cervix at 4 centimeters, effacement complete, and the fetus at 0 station. Mrs. Wilson's labor progressed, and at 7:29 p.m., Morgan was delivered, with vacuum assistance. According to the Admission Summary, Morgan was suctioned on the perineum, and, before she could be moved to the warmer, the "[c]ord clamp loosened with small amount of blood loss prior to reclamping." The Admission Summary further reveals that Morgan was "floppy and required bag mask ventilation x3 minutes, then blowby oxygen for 3 minutes." Apgar scores were noted as 1 and 8, at one and five minutes,2 and umbilical cord pH was reported as normal (7.28). Morgan was transferred to the neonatal intensive care unit (NICU) for "eval[uation] after blood loss." There, her blood count (with a hematocrit of 46 percent) was reported as normal or, stated otherwise, without evidence of a clinically significant blood loss due to the loosening of the clamp. Following two hours of observation, Morgan was transferred to the normal newborn nursery; however, at 4:20 p.m., December 13, 2000, she was readmitted to the neonatal intensive care unit. The reason for admission was stated in the Admission Summary, as follows: . . . Indications for transfer included 38 week WF with renal vein thrombosis and left middle cerebral artery stroke. Neonatology consulted midafternoon today secondary to hematuria. On exam, Dr. Cuevas noted asymmetry of pupils, with right more dilated and less responsive then left. Also noted to have torticollis, preferring to keep head turned to left. Also noted to have palpable mass in left abdomen. Renal ultrasound revealed renal vein thrombosis. HUS showed some echogenecity so Head CT done revealing left middle cerebral artery stroke. Hct this am 41. Baby then admitted to NICU for further care. Neurology and hematology consulted as well as nephrology. Impressions on admission included: possible coaguloathy; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Morgan remained at Baptist Medical Center until December 29, 2000, when she was discharged to her parents' care. Morgan's Discharge Summary noted the following active diagnoses: possible coagulopathy; anemia; left middle cerebral artery stroke; renal vein thrombosis; and torticollis. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, indisputably, the record demonstrates that Morgan suffered an injury to the brain (following a stroke in the territory of the left middle cerebral artery, likely due to arterial occlusion or superior saggital sinus thrombosis). What is disputed, is whether the proof demonstrates, more likely than not, that such injury occurred "in the course of labor, delivery, or resuscitation," and whether any such injury rendered Morgan "permanently and substantially mentally and physically impaired." The timing of, and the neurologic consequences that followed, Morgan's brain injury To address whether Morgan's brain injury occurred "in the course of labor, delivery, or resuscitation," and whether such injury rendered Morgan "permanently and substantially mentally and physically impaired," Petitioners offered medical records relating to Mrs. Wilson's antepartum course, as well as those associated with Morgan's birth and subsequent development. Additionally, Mrs. Wilson testified on her own behalf, and Respondent offered the deposition testimony of Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, and Dr. Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and neurophysiology.3 As for the timing of Morgan's injury, it was Dr. Willis' opinion that the medical records did not reveal any obstetrical event that would account for Morgan's injury. In so concluding, Dr. Willis noted that fetal monitoring (which began on admission and continued until 7:28 p.m., one minute prior to delivery) did not reveal evidence of fetal compromise or a clinically significant event that would account for Morgan's injury, that Morgan's 5-minute Apgar score was normal, her umbilical cord pH was normal, and her hematocrit on initial admission to the neonatal intensive care unit was normal. Consequently, Dr. Willis concluded that Morgan's injury did not occur during labor, delivery, or resuscitation. Also speaking to the timing of Morgan's injury was Dr. Duchowny who, based on his review of the medical records, shared Dr. Willis' opinion that there was no evident problem during labor and delivery, and further opined that Morgan's injury likely occurred prior to labor. In concluding that Morgan's injury likely predated the onset of labor, Dr. Duchowny noted that Morgan's CT scan on the day after birth clearly revealed a stroke in the territory of the left middle cerebral artery, and that it would take at least 72 hours for a stroke to be revealed so clearly on a CT scan. Apart from the timing of Morgan's brain injury, Dr. Duchowny also expressed his opinions, based on his examination of November 6, 2001, regarding the neurologic consequences that followed Morgan's injury. Dr. Duchowny reported the results of Morgan's neurology evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, well developed and well nourished 10 1/2 month old white female. The skin is warm and moist. There are no cutaneous stigmata or dysmorphic features. The hair is light blonde, fine and of normal texture. Morgan weighs 18-pounds, 10-ounces. Her head circumference measures 45.6 cm, which is at the 60th percentile for age matched controls. There are no dysraphic features. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals an alert infant who is socially oriented. She has good central gaze fixation, conjugate following and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. There are no facial asymmetries. The tongue and palate move well, and there is no drooling. Motor examination reveals an obvious asymmetry of posturing and movement. The left side is positioned normally and tends to grasp for objects. The right upper and lower extremity have diminished movement in comparison to the left and there is a tendency for the left hand to cross the midline for all manual tasks. She will not grasp for an offered cube with her right hand. In contrast, the left hand will grasp for a cube and display the beginnings of individual finger movements. The thumb on the right hand is fisted. The muscle, bulk and tone appears symmetric. Deep tendon reflexes are 2+ at the biceps and knees. Both plantare responses are mildly extensor. On pull-to-sit there is an asymmetry of the upper extremity, with relatively greater pull on the left side. The neck tone is good. There are no adventitious movements. Sensory examination is intact to withdrawal of all extremities to touch. The neurovascular examination via the anterior fontanelle is unremarkable. In SUMMARY, Morgan's neurologic examination reveals a mild to moderate motor asymmetry of the right side affecting primarily upper extremity, but with some lower extremity involvement as well. In contrast, Morgan's cognitive status appeared well preserved for age and she is certainly developing on schedule with regard to her linguistic milestones. I suspect that Morgan's motor function will continue to improve, as she is working actively in therapy. In sum, it was Dr. Duchowny's opinion that Morgan evidenced neither a permanent and substantial physical impairment nor a permanent and substantial mental impairment. In contrast to the proof offered by Respondent, Petitioners offered the lay testimony of Mrs. Wilson, which was legally insufficient to support a finding regarding the timing of Morgan's brain injury, and which failed to support a conclusion that Morgan was permanently and substantially mentally and physically impaired. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable.") Consequently, since the opinions of Dr. Willis and Dr. Duchowny are logical, and consistent with the medical records, it must be resolved that, more likely than not, Morgan's brain injury did not occur "in the course of labor, delivery, or resuscitation," and that Morgan's injury did not render her "permanently and substantially mentally and physically impaired." Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
Findings Of Fact Yancel Peraza was born on April 1, 2009, at Winnie Palmer Hospital in Orlando, Florida. Yancel weighed 3,525 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Yancel. In a medical report dated November 27, 2013, Dr. Willis opined the following: The newborn was not depressed. Apgar scores were 8/9. No cord blood gas was done. No resuscitation was required after birth. The baby had a weak right arm and some mild respiratory distress with grunting and flaring. The respiratory distress resolved shortly after birth. Neurology consultation was obtained at one day of age for evaluation of a weak right arm. Erb’s palsy was suspected. New born hospital course was otherwise uncomplicated. The baby was discharged home two days after birth with Neurology follow-up scheduled for reevaluation of the weak right arm. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post delivery period. The baby did have a brachial plexus injury, but no damage to the spinal cord. NICA retained Michael S. Duchowny, M.D., to perform an independent medical examination of Yancel. Dr. Duchowny examined Yancel on September 25, 2013. In a medical report dated September 25, 2013, Dr. Duchowny reported his findings and gave the following opinion: In summary, Yancel’s neurologic examination is significant for a right Erb’s (upper brachial plexus) palsy involving the C5 and C6 dermatomes. He has a preserved individual finger dexterity and fine motor coordination but is mechanically limited by a fixed elbow contracture on the right. In contrast, there are no other significant findings on the neurologic examination. Despite the absence of supplementary medical records, Yancel’s neurological examination today that is consistent with an Erb’s palsy of the upper cervical nerve roots anatomically places his deficit outside the central nervous system (brain and spinal cord). For this reason, I do not believe that Yancel should be considered for compensation within the NICA program. A review of the file does not show any contrary opinion, and Petitioner and Intervenors have no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Yancel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Duchowny that Yancel has Erb’s palsy, which is outside the central nervous system, meaning that the injury does not involve the brain or spinal cord, is credited.
Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which rendered him permanently and substantially mentally and physical impaired.
