STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW T. AND STACIE L.

BLACKSHEAR, on behalf of and as parents and natural guardians of ALLISON PAIGE BLACKSHEAR, a

minor,

vs.

Petitioners,

Case No. 12-0475N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on October 24, 2014.

STATEMENT OF THE CASE

On January 30, 2012, Petitioners, Matthew T. and Stacie L. Blackshear, on behalf of and as parents and natural guardians of Allison Paige Blackshear (Allison), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth- Related Neurological Injury Compensation Plan (Plan). The

Petition named Judith Barreiro, M.D., as the physician providing obstetrical services at the birth of Allison on July 20, 2009, at University Community Hospital located in Tampa, Florida.

DOAH served NICA with a copy of the Petition on February 7, 2012. On February 8, 2012, DOAH received a return receipt from the United States Postal Service showing that Dr. Barreiro had been served with a copy of the Petition. DOAH served a copy of the Petition on University Community Hospital on June 6, 2012.

As of this date, neither Dr. Barreiro nor University Community Hospital has petitioned to intervene in this proceeding.

On October 24, 2014, NICA filed a Motion for Summary Final Order, asserting that Allison did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. The motion was served by electronic mail on October 24, 2014. No response to the Motion was filed by Petitioners.

FINDINGS OF FACT

1. Allison Paige Blackshear was born on July 20, 2009, at University Community Hospital located in Tampa, Florida. Allison weighed 3,900 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Allison to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the

   
   

   hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings as follows in his medical report:

   She [Mrs. Blackshear] was admitted to the hospital at term for elective repeat Cesarean section delivery. She was not in labor.

   Fetal heart rate (FHR) monitor prior to delivery shows a normal baseline fetal heart rate of 130 bpm and a reactive pattern. The FHR monitor tracing prior to delivery does not suggest fetal distress.

   
   

   The operative report indicates that the repeat Cesarean delivery was “uncomplicated.” Birth weight was 8 lbs 9 oz’s (3,900 grams). The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required.

   
   

   The baby was taken to the normal nursery. The baby breast fed twice and was in apparent good health until four hours after birth.

   While in the mother’s arms, the baby stopped breathing and turned blue. The baby was taken to the NICU for evaluation and management. Persistent apnea required intubation. Seizure activity was noted about 24-hours after birth. EEG confirmed seizure activity. Head ultrasound was negative. MRI on DOL 2 showed an extensive acute ischemic infarction in the area of the left middle cerebral artery.

   
   

   In summary, there was no fetal distress noted by FHR monitor prior to delivery. Delivery was by uncomplicated repeat Cesarean section. The newborn was not depressed at birth with Apgar scores of 9/9. About four hours after delivery, apnea developed, which was followed by seizure activity. MRI confirmed an acute cerebral infarction. The cerebral infarction apparently developed several hours after

   
   

   birth and was not related to any obstetrical event.

   
   

   There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during delivery or the immediate post delivery period.

   
   

3. NICA retained Raymond J. Fernandez, M.D.

   
   

   (Dr. Fernandez), a pediatric neurologist, to examine Allison and to review her medical records. Dr. Fernandez examined Allison on April 10, 2012. In the affidavit attached to the Motion for Summary Final Order, Dr. Fernandez opined as follows:

4. I examined Allison on April 10, 2012. At that time, she was 2 years and 9 months old. Based on my examination of her and my review of the available records at that time, I concluded that Allison had a permanent and substantial motor (or physical) impairment. I also stated that she was likely to experience substantial mental (cognitive and behavioral) impairment due to her large perinatal stroke and associated left hemisphere atrophy. In addition, it was my

   opinion that the cause of Allison's perinatal stroke was unclear, but it was not due to an acute obstetrical event that caused systemic oxygen deprivation during delivery. See, Independent Medical Examination report dated April 10, 2012, a true and accurate copy of which is attached hereto as Exhibit A.

   
   

5. Subsequently, on May 12, 2012, I prepared an addendum to my initial report. In that addendum, I explained that it was my opinion that irrespective of the timing of Allison's stroke, it was not due to systemic oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period and as result did not meet the criteria for coverage under the NICA plan. Allison's stroke was due to

   
   

   reduction in left middle cerebral artery blood flow. In addition, Allison was stable immediately after birth and had Apgar scores of 9 and 9, and she did not need or require any resuscitation in the delivery room or immediately thereafter and remained stable until approximately four hours after her birth, at which point the first apneic episode occurred. See, Addendum to The Independent Medical Examination of April 10, 2012, a true and accurate copy of which is attached hereto as Exhibit B.

   
   

6. It remains my opinion today that Allison does not qualify for coverage under the NICA plan as her stroke was not caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate post-delivery period and because the [sic] was no need for any active or ongoing resuscitation after delivery. Her first apneic episode did not occur until approximately four hours after birth, well after it had been determined that she was in good and stable condition.

   
   

7. Irrespective of the timing of Allison's stroke and resulting brain injury, it is my opinion that she does not qualify for coverage under the NICA plan because she does not have a permanent and substantial mental impairment. Although I indicated in my initial report that substantial mental impairment was likely, I also noted that Allison's early speech delay (which some times can be predictive of substantial mental impairment) was improving.

   
   

8. Subsequent to my initial report, I was provided additional medical records reflective of Allison's growth and development since the time that I examined her. In addition, I was provided the deposition transcripts of Allison's parents, Matt and Stacie Blackshear. Having reviewed this additional information, it is clear that Allison has developed and progressed much

better than expected and currently does not have a permanent or substantial mental impairment.

1. 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 there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Fernandez’s opinion that, as there was no need for resuscitation at the time of delivery and Allison was stable until approximately four hours of age, the NICA criterion for brain injury to be caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post-delivery period is not met. Moreover, there are no contrary opinions filed to Dr. Fernandez's opinion that Allison currently does not have a permanent or substantial mental impairment. Dr. Fernandez’s

   opinion is credited.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   §§ 766.301-766.316, Fla. Stat.

   
   

3. The Plan was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for

   
   

   birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

4. The injured infant, her or his personal representative, parents, dependents, and next of kin may seek compensation under the Plan by filing a claim for compensation with DOAH.

   §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA,

   
   

   which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." § 766.305(4), Fla. Stat.

5. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the administrative law judge to whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned administrative law judge in accordance with the provisions of chapter 120, Florida Statutes.

   §§ 766.304, 766.309, and 766.31, Fla. Stat.

   
   

6. In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:

   
   

   1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).

      
      

   2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

      
      

      § 766.309(1), Fla. Stat. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth."

      § 766.31(1), Fla. Stat.

      
      

7. The term "birth-related neurological injury" is defined in section 766.302(2) as follows:

   "Birth-related neurological injury" means 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 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.

   
   

8. The evidence, which is not refuted, established that Allison did not sustain an injury to the brain caused by oxygen deprivation or mechanical trauma occurring in the course of labor or delivery. Therefore, Allison is not eligible for benefits under the Plan. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71

So. 3d 828 (Fla. 2011)(In order for a birth-related neurological injury to occur, the injury to the brain caused by oxygen deprivation must occur during labor, delivery or resuscitation in the immediate post-delivery period. That period “does not encompass an additional extended period of time . . . unless there are ongoing and continuous efforts of resuscitation.").

Id. at 847.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

1. The Petition filed by Matthew T. and Stacie L. Blackshear, on behalf of and as parents and natural guardians of Allison Paige Blackshear, is dismissed with prejudice.

2. The final hearing scheduled for November 20 and 21, 2014, is canceled.

DONE AND ORDERED this 5th day of November, 2014, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2014.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified Mail No. 7014 2120 0003 1049 3287)

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1049 3294)

University Community Hospital 3100 East Fletcher Avenue Tampa, Florida 33613

(Certified Mail No. 7014 2120 0003 1049 3300)

Judith Barreiro, M.D.

3000 Medical Park Drive, Suite 300

Tampa, Florida 33613

(Certified Mail No. 7014 2120 0003 1049 3317)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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).

Docket for Case No: 12-000475N

Orders for Case No: 12-000475N