Findings Of Fact Al-Maudi was born on November 20, 2018, at the Hospital located in Port St. Lucie, Florida. A review of the medical records filed in this matter identify the “primary obstetrician” and “obstetrical attendant” as “Zollicoffer.” The records do not name any other physician who participated in the course of labor, delivery, or resuscitation in the postdelivery period for Al-Maudi. To supplement its motion, NICA produced from its official records a payment history which shows that, in 2018, Dr. Charles Zollicoffer did not pay to NICA the annual $5,000 assessment required by physicians who elect to participate in the Plan. See § 766.314(4)(c), Fla. Stat. On the contrary, Dr. Zollicoffer’s payment history reveals that he paid $250 to NICA, which is the specific assessment for physicians who elect not to participate in the Plan. See § 766.314(4)(b)1., Fla. Stat. Further, no evidence was presented demonstrating that Dr. Zollicoffer was exempt from paying the assessment to participate in the Plan in 2018. Therefore, based on the evidence in its records, NICA determined that Petitioner’s claim did not meet the statutory requirements for compensability under the Plan. NICA subsequently filed the Motion for Summary Final Order. Petitioner has not responded in opposition to NICA’s motion or representations.
Findings Of Fact The Petition named Dr. Bankert as the physician providing obstetric services at Gavin's birth on June 30, 2009. Attached to the motion is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Glenn Bankert indicates that in the year 2009, the year which Dr. Bankert participated in the delivery of Gavin King, as indicated in the Petitioner's [sic] Petition for Benefits, Dr. Bankert did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Bankert in relation to an exempt status for the year 2009. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2009, Dr. Bankert paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt licensed physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. No party has offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Bankert was not a participating physician in the Plan at the time of Gavin's birth. Petitioners have not requested additional discovery time, and Petitioners have not moved for leave to amend the Petition to name any additional physician as rendering obstetrical services in connection with Gavin's birth. Dr. Bankert was not a participating physician at the time of Gavin's birth on June 30, 2009.
The Issue Whether Roslyn Sue Wells (Roslyn) suffered a “birth-related neurological injury” as defined by section 766.302(2) for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation (NICA) Plan (the Plan).
Findings Of Fact Pursuant to the Joint Pre-hearing Stipulation, the parties agreed to the following facts: Roslyn was delivered on March 24, 2016, at MRMC—a hospital. Roslyn was a single gestation, weighing 3,240 grams at delivery. Dr. Hunt was the delivering physician and was a NICA participating provider at the time of Roslyn’s delivery. MRMC provided notice of NICA participation to Petitioners. Provision of notice of Dr. Hunt’s NICA participation to Petitioners was excused. The undersigned makes the following additional Findings of Fact: Natalie, who was pregnant with Roslyn for approximately 38 weeks, began experiencing contractions at about 11:30 a.m., on March 24, 2016. Natalie arrived at MRMC at 3:30 p.m., that day, and MRMC began fetal heart rate monitoring at 3:32 p.m. At 4:12 p.m., Lisa Roberson, R.N., in the OB Triage notes, noted that “Dr. Hunt covering for Dr. Marquette. Called w/full report. Fhts. w/minimal variability and variables w/every ctx. Reported ctx. Pattern and urine dip. Orders to continue watch pt.” The OB Triage notes indicate, at 4:27 p.m., prolonged accelerations with fetal heart rates down to the “60s” with “occasional rises to the 90s” over 8 minutes. At 4:34 p.m., the OB Triage notes indicate that the fetal heart rate and maternal heart rate “not in sync [:] maternal hr 80s and fhts in 100s.” At 4:36 p.m., Nurse Roberson’s notes indicate “MD called back to inform of fhts continue to decel. MD orders to take pt. to the OR now.” Natalie arrived in the operating room at 4:41 p.m., and Dr. Hunt arrived at 4:45 p.m. The MRMC notes indicate “MD arrived to OR and spoke w/pt. about c/s. Informed MD at that time that the baby’s hr was in the 80- 90s prior to prep.” Dr. Hunt delivered Roslyn, via cesarean section, at 4:54 p.m. Dr. Hunt’s operative report states: The patient is a 30-year-old, gravida 2, para 1 female, admitted at 38 weeks gestation in active labor. She states that contractions became quite strong and she came to the labor room. ON the monitor, she was having mild contractions, but they were at 1 and 2 minute intervals. She had a baseline fetal heart beat of 110. There were no accelerations noted. She was in the labor room short time for monitoring when she had decelerations down to the 60s and had come back up to the 90s. I was called and came in for immediate cesarean section. Just prior to being placed on the operating table, fetal heart tones were 90. The patient had no vaginal bleeding and membranes were intact. The operative report further states, “[a] 6-pound-15-ounce female infant was delivered with Apgars of 0, 0, and 2 at 15 minutes. The baby required immediate resuscitation by the neonatologist.”1 1 “An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total of points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability and color.” Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So. 2d 155, 156 n.1 (Fla. 4th DCA 2002) (citing Dorland’s Illustrated Medical Dictionary 1498 (27th ed. 1988)). The Neonatologist Transfer Note states, in pertinent part: Baby Girl Wells born via state C/s due to NRFHR – HR in the 50-60s for ~10 minutes. Mother is serology negative. Infant with APGARS 0/0/0/3 at 1,5/10/15 minutes requiring CPR for ~15 minutes. Infant was limp, cyanotic, no respiratory effort, intubated and given manual breaths until 15 minutes and placed on mechanical ventilator. . . . Per OB mother had massive abruption placenta. The Neonatology Delivery/Consult Note reflects the following diagnoses: “term newborn born via c/s for NFEHR”; “hypoxic ischemic encephalopathy”; and “respiratory failure.” The MRMC Delivery Summary reflects that Roslyn was “alive.” The MRMC Admission Orders reflect that Roslyn was “[l]iveborn in hospital by cesarean section (primary).” Following delivery and resuscitation, MRMC’s records reflect Roslyn’s vital signs on March 24, 2016, as follows: blood pressure of 75/35 at 5:12 p.m.; blood pressure of 69/50 at 5:18 p.m.; blood pressure of 69/50, with some spontaneous respirations noted at 5:34 p.m.; blood pressure of 74/32 at 5:36 p.m.; pulse of 124/minute, and with 5-6 spontaneous respirations noted at 6:03 p.m.; a pulse of 120/minute at 6:19 p.m.; and blood pressure of 78/47, and a pulse of 120/minute, at 6:33 p.m. At 6:45 p.m., on March 24, 2016, Roslyn was discharged from MRMC and transferred to Shands Hospital at the University of Florida (Shands) for continued care in its neonatal intensive care unit (NICU). Shands NICU started a cooling protocol for hypoxic ischemic encephalopathy, and also started a video EEG. Roslyn remained on a mechanical ventilator. The neurological examination of Roslyn reflects that she “doesn’t react[] to light by squinting,” has “[w]eak withdraw with some antigravity effort to noxious stimuli seen in all 4 extremities,” and “withdraws to pain equally in all extremities.” Video EEG from overnight revealed multiple seizures, and Phenobarbital was administered. Roslyn remained on a mechanical ventilator through March 28, 2016, at Shands. She received two blood transfusions. A trial of feeding started on day 3 of life that Roslyn did not tolerate. On March 28, 2016, a brain MRI showed global injury to Roslyn’s brain involving the whole cortex and basal ganglia. According to the notes of the treating physician at Shands: After discussing results of the MRI concerning the global injury, along with the signs of hemodynamic instability, and the EEG readings the parents decided to withdraw care. Two attendings supported the decision. Sedative drips were stopped and prn medications were ordered. The patient was extubated at 1800, 3/28/16. Time of death 3/29/16 4:28 a.m., pronounced by [the attending physician]. Testimony of Expert Witnesses2 The parties’ respective experts opined on the critical issue in this matter: whether Roslyn was a “live infant” or “live birth” as contemplated under section 766.302(2) (and would therefore be entitled to compensation under the Plan), or whether she suffered a “fetal death,” which would fall outside of section 766.302(2). The experts relied on Roslyn’s Apgar scores, and also relied on the definitions of “fetal death,” “live birth,” and “stillbirth” found in section 382.002, Florida Statutes, which is the definitional provision of the Vital Statistics chapter of the Florida Statutes, in rendering their opinions. 2 The parties stipulated to the undersigned accepting Dr. Voss and Dr. Willis as medical experts. The undersigned has reviewed the deposition transcripts of both, has considered their credentials, and the bases for their respective opinions, and accepts both as expert witnesses. Section 766.302(2) defines “Birth-related neurological injury” as: [An] injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation, or in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring he course of labor, deliver, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis supplied). Section 382.002(8) defines “fetal death” as: death prior to the complete expulsion or extraction of a product of human conception from its mother if the 20th week of gestation has been reached and death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Section 382.002(12) defines “live birth” as: The complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy, which, after such expulsion, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, and definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Section 382.002(17) defines “stillbirth” as “[a]n unintended, intrauterine fetal death after a gestational age of not less than 20 completed weeks.” Petitioners’ expert, Dr. Voss, whom they originally retained in the previous medical negligence lawsuit, opined that Roslyn was not born alive, based primarily on her Apgar scores. Dr. Voss stated: This – this child had Apgar scores of zero at one minute; zero at five minutes; zero at ten minutes. And, finally—there’s a discrepancy in the records between the note made by the obstetrician and the note made by the neonatologist; either had a score of two or three. But at one minute, five minutes, and ten minutes, this baby did not have a detectable heartbeat, made no respiratory efforts, and had no movement based on the Apgar scores. Q: But you would agree with me that the Apgar score of either two or three at 15 minutes would indicate signs of life, wouldn’t you? A: After resuscitative efforts, yes. Dr. Voss also opined that the statutory definitions of “live birth,” “fetal death,” and “stillbirth” include the factors that are considered in the assignment of Apgar scores. He further opined that Roslyn showed signs of life sometime between 10 and 15 minutes after extraction, but also that she showed no signs of life prior to that. Dr. Voss testified, “I think this fetus died in utero. I think this was a fetal death.” However, upon further questioning, he clarified his opinion as follows: But—so again, at birth, at the time of extraction, or delivery, or whatever term you want to put to it, this baby had no signs of life. And it’s only—and it occurred temporally enough that these tissues were still viable enough, with the right stimulus, signs of life could be restored through this child. But by the legal definition that is outlined in the statute, I would declare this a stillbirth, and clearly so, unless you want to say that, yes, at 10 to 15 minutes, signs of life—through the right stimulus, signs of life were restored; that the tissues were still viable enough, that with the right stimulus, the signs of life could be restored to the child. Q: Okay. So to be fair … it sounds like—and correct me if I’m wrong—your opinion is that this can be characterized as both a fetal death or stillbirth as well as— A: A live birth. Q: --a live birth, according to your medical definitions set forth in the statute, is that fair? A: Yes, that’s very fair. NICA’s expert, Dr. Willis, opined that Roslyn suffered oxygen deprivation during labor and delivery, resulting in brain injury. Dr. Willis opined that Roslyn’s Apgar scores (either 0/0/0/2 or 0/0/0/3) indicated that Roslyn showed signs of life after extraction from the mother. Dr. Willis further opined that Roslyn was born alive. He further testified: [S]everal things would confirm that. Number one, the child died five—five days after birth, so obviously the child was alive. The definition of live birth is expulsion of a baby that shows signs of life after birth. That can be a heartbeat or voluntary muscle movement or respiratory effort. There’s no time limit on it. So to show signs of life, it doesn’t mean it has to be by a certain time after life. It’s at any time after birth. In order to be considered a stillbirth, or demised at birth, you should remember that the—the diagnosis of death is a permanent diagnosis. So—so you can’t die and then be alive. So to say that a baby is stillborn means the baby is born without a heartbeat and is never resuscitated. Never shows signs of life. So in this case the baby was— obviously lived for several days, so it was alive. Also the records confirm this. On the delivery summary there’s a box that—that states several things about the baby. And on is—it has choices between alive and stillbirth and clearly circled is alive. So that would again confirm that impression, but clearly the baby was a live birth. When questioned on cross-examination whether Roslyn’s receiving a 0 Apgar score upon extraction indicated an intrauterine fetal death, Dr. Willis stated it did not, “because intrauterine fetal demise would be a baby that’s born without a heartbeat and never obtains one.” Dr. Willis later clarified, “[a]t any point after expulsion if there’s a heartbeat or sign of life, it is considered a live birth.” Based on the weight of the credible evidence presented, the evidence established that Roslyn suffered oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital (MRMC). Further, Roslyn weighed in excess of 2,500 grams. Additionally, the weight of the credible evidence establishes that Roslyn was, after extraction, a “live infant” and that this was a “live birth,” based on the statutory definitions found in section 382.002, the medical record evidence presented, and the expert testimony of both Dr. Voss and Dr. Willis, and that this was not a “fetal death” or “stillbirth.” The medical record evidence indicates that, between 10 and 15 minutes after extraction, signs of life were present, including a pulse, blood pressure, and spontaneous respirations following resuscitative efforts. Additionally, after the Petitioners made the decision to withdraw mechanical care to Roslyn, and care was withdrawn, Roslyn lived for approximately 10 and one-half hours on her fifth day of life. Further, Dr. Voss and Dr. Willis both testified that Roslyn was a live birth, although Dr. Voss testified that Roslyn was both a live birth and a fetal death/stillbirth. The undersigned credits Dr. Willis’s testimony that “live birth” means a baby that shows signs of life after birth, which is what happened with Roslyn, and that Roslyn suffered a neonatal death. The undersigned does not credit Dr. Voss’s testimony that Roslyn was both a fetal death/stillbirth and a live birth.
Conclusions For Petitioners: T. Patton Youngblood, Jr., Esquire Youngblood Law Firm Suite 800 360 Central Avenue St. Petersburg, Florida 33701-3984 For Respondent: Brooke M. Gaffney, Esquire Smith, Stout, Bigman & Brock, P.A. Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 For Intervenors: For Intervenor Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center: David O. Doyle, Jr., Esquire Pearson Doyle Mohre & Pastis, LLP Suite 401 485 North Keller Road Orlando, Florida 32751 For Intervenors Seaborn Hunt, M.D., and 17th Street, LLC: M. Suzanne Green, Esquire Bice Cole Law Firm, L.P. 1333 Southeast 25th Loop, Suite 101 Ocala, Florida 34471
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
The Issue At issue in this proceeding is whether 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 Based upon Petitioners and Respondent’s stipulation, the following facts are found: Kieara Johnson and Joshua Maier (Petitioners) are the parents and legal guardians of Kayden Maier (Kayden), and are the “Claimants” as defined by section 766.302(3), Florida Statutes. Kayden incurred a birth-related neurological injury as that term is defined in section 766.302(2), which was the sole and proximate cause of Kayden’s injury. At birth, Kayden weighed 3,830 grams. Jose Llinas Messeguer, M.D., and Richard Strathmann, M.D., rendered obstetrical services in the delivery of Kayden, and at all times material to these proceedings, were “participating physicians” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Kayden was born. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including any attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
