Findings Of Fact Micah was born on May 18, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Victoria Jones, M.D., was the delivering physician for Micah’s birth. No evidence was presented to DOAH regarding whether Dr. Jones was a “participating physician” under the Plan at the time Micah was born. See § 766.302(7), Fla. Stat. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Micah’s medical records and condition. NICA sought to determine whether Micah suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Micah experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Micah permanently and substantially mentally and physically impaired. Dr. Willis reviewed Micah’s medical records and noted: In summary, vaginal delivery was complicated by a shoulder dystocia with a duration greater than 5-minutes. The baby was depressed at birth with Apgar scores of 0/2/3, requiring chest compressions and intubation. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. Hypoxic ischemic brain injury was identified on head MRI. There was apparent obstetrical event (shoulder dystocia) that resulted in oxygen deprivation to the brain during delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in brain injury. Dr. Willis concluded, “I am unable to comment as to the extent of the brain injury.” Dr. Bella-Espinosa, on the other hand, did comment on the extent of Micah’s brain injury. Dr. Bella-Espinosa reviewed Micah’s medical records, and conducted an independent medical examination of Micah on January 24, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability: Micah is an Eight-month boy with a history of hypoxic ischemic encephalopathy of birth. He did have well established immediate postnatal encephalopathy, but he did not have neonatal seizures despite MRI changes which were indicative of hypoxic-ischemic insult[.] His neurological examination, except for mild residual right arm decreased tone, was normal, with no evidence of encephalopathy, myelopathy, neurogenic or myopathic processes. Micah is found not to have a substantial physical and mental impairment at this time. In review of all the available documents, the mild decreased tone on the right arm is indicative of residual changes as a result of the shoulder dystocia. This type of injury is birth related, but he is expected to recover most of his right arm function. The prognosis of full recovery is excellent. Estimated life expectancy should be normal. * * * Considering the clinical presentation and progression, I feel that there is not enough evidence to recommend Micah be included in the NICA program. A review of the file reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioners’ claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Micah did not suffer a “birth-related neurological injury” as defined by section 766.302(2). As of the date of this Order, Petitioners have not responded to NICA’s motion.
Findings Of Fact Elizabeth was born on November 26, 2011, at North Shore Medical Center. The subject Petition was filed on June 21, 2018, which is more than five years after Elizabeth’s birth. Dr. Mark Spence was the physician providing obstetric services and who was present at Elizabeth’s birth. Attached to Respondent’s Motion is the affidavit of Respondent’s Records Custodian, Tim Daughtry. Mr. Daughtry attests in his affidavit that, in 2011, Dr. Spence 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. Spence is otherwise exempt from payment. To the contrary, Dr. Spence 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. Spence was not a participating physician in the Plan at the time of Elizabeth’s birth.
