The Issue At issue in this proceeding is whether Wilkens Jolimer, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Initial observations As observed in the preliminary statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding Petitioners' failure of proof, Respondent elected to offer into evidence the medical records filed with DOAH on December 16, 1996, which included records relating to Wilkens Jolimer's (Wilkens') birth, as well as the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Wilkens had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Wilkens' birth and development Wilkens was born July 11, 1996, at Florida Hospital, Orlando, Florida. On January 23, 1997, following the filing of the claim for compensation, Wilkens was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's physical and neurologic examination revealed the following: PHYSICAL EXAMINATION reveals an alert, pleasant and cooperative, well-developed, well-nourished, six-month-old, black male infant. The skin is warm and moist. There are no neurocutaneous stigmata. No digital, skeletal or palmar abnormalities are noted. There is a mild cranial asymmetry, with prominence of the left parietal region. The anterior and posterior fontanelle are patent and flat. Head circumference measures 44.7 cm, which approximates the 60th percentile for age. There is no frontal bossing. The neck is supple without masses, thyromegaly or adenopathy. There are four teeth. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGIC EXAMINATION reveals Wilkins to be an active six-month-old with a well- developed curiosity and active vocalizations. He maintains good central gaze fixation and conjugately follows without difficulty. There is good visual tracking. There is blink to threat from both directions. The fundi are benign. Pupils are 3 mm and react briskly to direct and consensually presented light. The tongue and palate move well and there are no facial asymmetries. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. Wilkins is able to sit without falling and he stands briefly, but cannot bear weight [which is consistent with a six-month-old infant and entirely normal]. There are no movement asymmetries. The deep tendon reflexes are 2+ and symmetric and the plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to pin. Neurovascular examination discloses no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries. In Dr. Duchowny's opinion, which is credited, Wilkens' neurologic examination was entirely normal, and he evidenced no motor or cognitive deficits. Moreover, it was also Dr. Duchowny's opinion, which is likewise credited, that the records relating to Wilkens' birth do not reveal any untoward events occurring in the course of labor, delivery or the immediate post-delivery period which would have caused or contributed to neurological injury.
Findings Of Fact Mesiah Waldron was born on February 23, 2012, at Broward General Medical Center in Fort Lauderdale, Florida. He was a single gestation. Based on the medical records from Broward General Medical Center, Mesiah weighed 590 grams at birth. There is no dispute that Mesiah did not weigh at least 2,500 grams.
Findings Of Fact Stephanie was born at St. Joseph’s on June 7, 2014. She was a child born of single gestation. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated August 17, 2019, and affidavit dated August 23, 2019, as Exhibit 1 in support of its Motion. According to Dr. Willis’s expert report, hypertension was noted at Ms. Garriga’s office visit at 36 weeks, but at that time, there was no indication of fetal distress. Labor was induced at 37 weeks for gestational hypertension. Fetal heart rate tracings were reported to be category 1, which indicates no fetal distress. Dr. Willis’s report states that delivery was by spontaneous vaginal birth, with a birth weight of 2,430 grams. Stephanie was depressed at birth, and although she had a “good heart rate,” there was no respiratory effort. Evaluation in the NICU showed overall decreased activity and poor muscle tone. Her chest x-ray revealed streaky infiltrates, consistent with retained lung fluid. Stephanie’s newborn hospital stay was complicated by poor feeding due to a very weak gag reflex, and g-tube feedings were required, with eventual fundoplication performed. Dr. Willis’s report also indicates that an evaluation was performed because of her poor muscle tone, and the neurological evaluation did not identify an etiology for the issue. Other tests were also normal. Dr. Willis’s ultimate opinion is that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. He also noted that Stephanie’s birth- weight was below the threshold for eligibility for NICA compensation. Dr. Willis’s opinion is credited. Stephanie was also examined by Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny’s August 14, 2019, expert report and August 26, 2019, affidavit were submitted as Exhibit 2 in support of NICA’s Motion. Dr. Duchowny’s IME occurred when Stephanie was five years old. Upon examination, she could not swallow, sit alone, crawl, or walk. Cognitively, Stephanie speaks well and has achieved age-appropriate speech, and Dr. Duchowny’s neurologic evaluation indicates, Neurologic evaluation reveals a sociable cooperative fully fluent 5-year-old girl. Stephanie was brought to the office in a wheelchair. She is socially interactive and answers questions with accurate verbal content. She correctly identified letters and knew primary and secondary colors. She told me her first and last names. Her speech sounds are fluent and reasonably well articulated, and she maintains an age- appropriate stream of attention. Dr. Duchowny summarized his opinion, which is credited, in his affidavit, stating: In summary, Stephanie’s general physical and neurological examinations reveal profound hypotonia and hypo-reflexia with preserved cognitive status. She is diagnosed with myasthenia gravis (along with her sister), immunodeficiency syndrome neuromuscular scoliosis and bilateral hip dislocations. . . . I reviewed the medical records sent on August 12, 2019. Stephanie was born at 37 weeks’ gestation following a pregnancy complicated by hypertension. She was born floppy with no respiratory effort, but following responded favorably to positive pressure ventilation. Apgar scores were 2, 5, and 6 at 1, 5, and 10 minutes; a venous cord pH was 7.35 with a base excess of -5.6. Severe hypotonia was noted at birth leading to early gastrostomy placement and evaluation into potential genetic causes. A neonatal MR imaging study was read as normal, while a second study at age 4 months revealed delayed myelination.[1/] Based on the record review, clinical diagnoses and the results of the IME, it is my opinion that Stephanie did not suffer an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate postdelivery period which rendered her permanently and substantially mentally and physically impaired. Based on the evidence presented in support of the Motion, Stephanie is not eligible for compensation under the Plan because her birth weight does not meet the criteria established by statute for a birth-related neurological injury. Based upon the evidence presented in support of the Motion, Stephanie has substantial physical impairments. However, the evidence does not indicate that these impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. Finally, no evidence presented demonstrates that Stephanie suffers from any mental impairment. Petitioner has presented no evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Duchowny as detailed in their affidavits and expert reports.
Findings Of Fact Gianna was born on August 20, 2017, at Traditions Hospital, located in St. Lucie County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Gianna. In a medical report dated February 29, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor at term was complicated by an abnormal FHR tracing that required Cesarean section delivery. Umbilical cord blood gas pH of 7.04 would seem consistent [with] the FHR pattern prior to delivery. Although there was some acidosis at birth, cord pH and base excess were not substantial enough to likely result in significant brain injury. This would be consistent with Apgar scores of 9/9, suggesting no significant birth related depression or hypoxia. Head enlargement was noted at birth and head ultrasound within two hours of birth showed dilated ventricles, consistent with hydrocephaly. These findings were confirmed by subsequent MRI. It is most likely the brain injury occurred at some time in the prenatal period and not birth related. As stated above, the baby’s brain injury does not appear to be the result of oxygen deprivation or trauma during the birth process or immediate post delivery period. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello), a medical expert specializing in pediatric neurology, to examine Gianna and to review her medical records. Dr. Bello examined Gianna on February 25, 2020. In a medical report dated February 25, 2020, Dr. Bello summarized his examination of Gianna and opined, in pertinent part, as follows: Gianna is a 2 1/2 year old girl born at term via C- section noticed at immediately after birth to have severe megalencephaly, and clinical signs of severe increased intracranial pressure. An urgent head ultrasound demonstrated bilateral ventriculomegaly, right intraventricular hemorrhage, and suspicion of agenesis of the corpus callosum. MRI of brain at Miami Children’s hospital done on day 1 of life showed severe enlargement of the third and lateral ventricles. Transependymal flow of cerebrospinal fluid was seen around the lateral ventricles being worse in the left cerebral hemisphere and extending to a greater degree in the left occipital and parietal lobes. Extensive intraventicular hemorrhage is seen with large clot identified in the right later ventricle. Her subsequent course required 7-VP shunt related surgeries at Miami Children’s hospital but since she was discharged at 7-month of age she had not had any seizures [or] other neurological related events. Gianna’s neurological examination today revealed she still has enlarged head, as well as left sided hemiparesis with upper motor neuron signs, in addition to cognitive dysfunction and stereotypic behavior as seen in children with autism. She has a VP shunt in place, but no longer evidence of decompensated intracranial pressure. * * * In reviewing all the available documents, the evolution of her symptoms, the birth findings, the acute brain ultrasound and acute brain MRI changes, it is evident that Gianna clinical findings are the result of a prenatal condition, are not due to a birth injury, and not due to oxygen deprivation of the brain at birth. * * * Considering the clinical presentation, I do feel that there is no evidence to recommend Gianna is included in the NICA program. 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 it is unlikely that any significant oxygen deprivation occurred prior to the birth of Gianna. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bello’s opinion that Gianna should not be considered for inclusion in the NICA program. Dr. Bello’s opinion is credited. Petitioner, despite attending the April 23, 2020, telephonic status conference, and agreeing to the April 29, 2020, Joint Response to Scheduling Order, which states, in part, that “NICA is of the opinion that the issues can be resolved by Motion for Summary Final Order, which it intends to file in the near future[,]” has failed to respond to the Motion or the undersigned’s Order to Show Cause.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, 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. 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); 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."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
