Wolfe v. VIRGINIA BIRTH-RELATED NEURO.

• Decision Date: 20 May 2003
• Docket Number: Record No. 2489-02-3.
• Citation: 580 S.E.2d 467,40 Va. App. 565
• Parties: Taylor Hope WOLFE, Infant, by Ronda L. Wolfe, Mother and Next Friend, v. VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.
• Court: Virginia Court of Appeals

580 S.E.2d 467

40 Va. App. 565

Taylor Hope WOLFE, Infant, by Ronda L. Wolfe, Mother and Next Friend, v. VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM.

Record No. 2489-02-3.

Court of Appeals of Virginia, Salem.

May 20, 2003.

Robert W. Mann (Young, Haskins, Mann, Gregory & Smith, PC, on brief), for appellant.

Mahlon G. Funk, Jr. (M. Seth Ginther; Hirschler Fleischer, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER, J., and COLEMAN, Sr. J.

ELDER, Judge.

Ronda L. Wolfe (Wolfe), suing as mother and next friend of infant Taylor Hope Wolfe (claimant or Taylor), appeals from a decision of the Workers' Compensation Commission (the commission) concluding that Taylor is not entitled to benefits from the Birth-Related Neurological Injury Compensation Program (the Program) under the Birth-Related Neurological Injury Compensation Act (the Act), Code §§ 38.2-5000 to 38.2-5021. On appeal, claimant contends the commission erroneously (1) concluded she failed to prove a birth-related brain injury caused by oxygen deprivation; (2) failed to infer the results of umbilical cord blood gas testing, which she contends should have been requested by the delivering physician, would have proved Taylor suffered birth-related oxygen deprivation; (3) failed to hold the Program was bound by what she alleges was a concession that she was entitled to the Code § 38.2-5008 presumption; and (4) failed to conclude the Program did not rebut the presumption because it did not establish a specific non-birth-related cause of Taylor's injury.

We hold the Program did not concede claimant's entitlement to the Code § 38.2-5008 presumption and that the evidence, absent an inference that the absent cord blood gas testing would have shown oxygen deprivation, was insufficient to prove claimant's entitlement to the Code § 38.2-5008 presumption. However, we hold that such an inference is available to a claimant under appropriate facts. Thus, we remand to the commission to determine whether those facts were present in this case and, if so, whether the evidence, including the inference, was sufficient to prove claimant's entitlement to the statutory presumption and benefits under the Act. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Taylor was born on January 24, 1998, at thirty-seven weeks two days of gestation. The day prior to Taylor's delivery, her mother was found to have pregnancy-induced hypertension and was admitted to the hospital where labor was induced. At the time of Taylor's birth, the delivering physician, Lenworth Beaver, and hospital, Danville Regional Medical Center, were participants under the Act.

Wolfe had good prenatal care and an uneventful delivery. Wolfe's amniotic sac broke spontaneously about an hour before delivery, and the amniotic fluid was clear. There were no signs of meconium at any time during the delivery.

Hospital personnel monitored Taylor's heartbeat continuously in utero until approximately 30 minutes before delivery and at least every five minutes thereafter in accordance with the standards of the American College of Obstetricians and Gynecologists (ACOG). The fetal heart monitor strips and subsequent auscultation or stethescopic heart monitoring were normal and gave no indication of hypoxia or fetal distress. The records also revealed no evidence of utero-placental insufficiency or cord compression.

Dr. Beaver was present when Taylor crowned, and he delivered the eight-pound-ten-ounce baby by vacuum extraction, without incident, due to Wolfe's poor pushing ability. At the time of delivery, Taylor was not breathing spontaneously. At two minutes after delivery, medical personnel began ventilating Taylor by mask and bag. At four minutes after delivery, Taylor displayed poor respiratory effort, flaccidity and tremors, and she was intubated. She "had clonus when disturbed."

Despite the fact that Taylor was not breathing spontaneously, she was pink at delivery and pink at one, two, five and ten minutes following delivery. Her APGAR scores were 4 at one minute, 4 at five minutes, and 6 at ten minutes. Each score included the maximum of two points allowed for heart rate and color. All post-delivery arterial blood gases were within acceptable limits. At 10:20 a.m., approximately six hours after birth, Taylor was described as "pale pink." The records contain no indication that umbilical cord blood gases were measured, and a subsequent records review observed that "nurses' flow sheets and any records from the delivery M.D." are "conspicuously absent."

The day following Taylor's birth, she "developed seizure activity" that was controlled with medication.

An EEG performed within the first twenty-four hours was normal. Imaging studies showed no cystic degeneration, gray matter or other neurological abnormalities. A CT scan performed at one day of birth showed small left and right frontal lobe hemorrhages. These hemorrhages were absent on MRIs performed two days and twenty-three days after birth. Testing also revealed no evidence of multi-organ failure (cardiovascular, gastrointestinal, renal, hematologic, and pulmonary systems) in the neonatal period.

Taylor has been diagnosed with cerebral palsy. She is fed through a gastronomy tube and is unable to walk or speak.

On March 26, 2001, Wolfe submitted a claim for benefits on Taylor's behalf. The Program eventually denied the claim for benefits. The Program conceded that Taylor is permanently motorically and developmentally disabled but denied that Taylor's condition results from a birth-related neurological injury as defined in the Act.

The parties submitted evidence to the chief deputy commissioner in support of their respective positions.

Claimant relied on the records of numerous treating pediatric experts who opined that Taylor had "probable perinatal anoxic brain injury." Neurologist Francis X. Walsh reviewed Taylor's medical records and opined to a reasonable degree of medical certainty that she "suffer[ed] an anoxic ischemic event to the brain at or about the time of delivery." Dr. Walsh admitted that "[t]he actual delivery records do not pinpoint specific evidence of anoxia having occurred at a particular time." He said, however, that the records for the half-hour period immediately prior to the delivery were "scanty" and that such a diagnosis was all that remained after the elimination of congenital, infectious and "any other explanation for the child's global developmental delay" by "two well-respected pediatric neurologists."

Dr. Richard T. Welham, a member of ACOG, also reviewed Taylor's records at her attorney's request. Dr. Welham opined in relevant part as follows:

[The infant's] color was reported as good even in the face of no respiratory efforts. Unfortunately, ... immediate postpartum umbilical cord gases were not done .... Without these, it is difficult if not impossible to be certain that the baby was not anoxic and acidotic at the time of delivery.

* * * * * *

...[W]e have a normal appearing fetal heart tracing and a very abnormal infant outcome. The only event that occurred between these two things was the delivery itself. If an immediate postpartum blood gas had been done and showed normal findings, that would be consistent with a neurological insult that could have occurred distant from the delivery itself. Without that vital piece of information, it is impossible to exclude anoxia and asphyxia as the cause of her neurologic problems.

The Program obtained an opinion from Obstetrician Daniel G. Jenkins, who originally opined, "based on minimal evidence," that Taylor "qualifie[d] for the fund." Dr. Jenkins found "[n]o evidence of negligence ..., despite little documentation." Jenkins subsequently changed his opinion and concluded that Taylor "does not qualify for the fund." He explained as follows:

I have re-read my review and note that I omitted prematurity as a cause of cerebral hemorrhage and cerebral palsy. I feel I may have over-reacted to lack of documentation by nurses, the M.D. (Dr. Beaver), or possibly the hospital records department. While there is little documentation, there is no evidence, however, of real or perceived intrapartum asphyxia that could have caused this profound disability. Hence, one is left with one of the causes of cerebral palsy, which is "unknown."

This then changes my opinion, and I feel that this child does not qualify for the fund as I had previously stated.... [I]n re-thinking this as well as the literature regarding cerebral palsy, I feel that this is a fairer decision than I previously rendered.

The Program also offered the opinion of Lisa R. Troyer, a physician who was board-certified in both obstetrics and gynecology and high risk obstetrics. Dr. Troyer reviewed Taylor's medical records before providing a written opinion and testifying by deposition. She did not examine Taylor or participate in her care. Dr. Troyer opined, to a reasonable degree of medical certainty, that hypoxia "sufficient to account for the neurologic injury that Taylor has" did not occur during the second stage of Wolfe's labor. She testified that any gaps in the fetal heart monitoring during labor occurred "mainly before midnight in the earlier parts of labor" and that "[t]here are lots of [fetal heart] tracings in what would appear to be the active part of labor that are well-documented and adequate" with no indication of hypoxia. When Wolfe entered the second stage of labor at 3:58 a.m., "[t]here was no evidence of fetal compromise at the time, the fetal heart tracing was reactive." Thereafter, the records indicated that fetal monitoring occurred by auscultation at 4:00, 4:05, 4:10, 4:15 and 4:20 a.m., and that intermittent fetal tracings were obtained between 4:08 and 4:12 a.m. Delivery occurred at 4:27 a.m. The delivery records contained no mention of meconium "at the end of the delivery," which would have been...