STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHANELLE HUGGINS, individually ) and as parent of JAMAL WHITE, a ) minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 12-0854N

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Unopposed Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on February 26, 2013.

STATEMENT OF THE CASE

On March 8, 2012, Petitioner, Chanelle Huggins, individually and as parent of Jamal White, a minor, filed a Petition for Determination of Compensability Pursuant to Florida Statute Section 766.301 et seg. [sic] (Petition) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Natalia Camacho, M.D., as the

physician providing obstetric services at the birth of Jamal at St. Joseph Women and Children's Hospital in Tampa, Florida.

DOAH served NICA with a copy of the Petition on March 15, 2012. DOAH served copies of the Petition on St. Joseph Women and Children's Hospital and Dr. Camacho on March 16, 2012.

On February 26, 2013, NICA filed an Unopposed Motion for Summary Final Order, asserting that Jamal did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. NICA represented in the motion that counsel for Petitioner, Ronald Gilbert, was contacted on February 6, 2013, and had no objection to the granting of the motion.

FINDINGS OF FACT

1. Jamal White was born on August 19, 2010, at St. Joseph Women and Children's Hospital in Tampa, Florida. Jamal weighed 3,530 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jamal and his mother. In an affidavit dated February 22, 2013, Dr. Willis opined the following within a reasonable degree of medical probability:

   In summary, delivery was complicated by a shoulder dystocia. Cord blood pH was within normal limits with pH of 7.08. The baby suffered a brachial plexus injury. Hospital course was otherwise normal.

   
   

   Labor was complicated by a shoulder dystocia that resulted in a difficult delivery and a brachial plexus injury. However, the shoulder dystocia did not result in brain injury. There is no obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period.

   
   

3. Jamal was examined and evaluated by Raymond J. Fernandez, M.D. (Dr. Fernandez), on May 30, 2012. In an affidavit dated February 25, 2013, Dr. Fernandez found the following on his examination of Jamal:

   Jamal has mild weakness of his left arm, but in spite of this, he has good use of the arm, proximally and distally. The left arm weakness was due to a mechanical injury of his left brachial plexus during delivery that was complicated by shoulder dystocia.

   
   

   There was no evidence for substantial and permanent mental and physical impairment due to brain or spinal cord injury due to lack of oxygen or mechanical trauma.

   
   

4. A review of the file does not show any contrary opinion, and Petitioner has no objection to the issuance of a summary final order finding that the injury is not compensable under Plan. The opinion of Dr. Willis that Jamal did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate postdelivery period is credited. The opinion of Dr. Fernandez that Jamal does not have a substantial and permanent mental and

   
   

   physical impairment due to lack of oxygen or mechanical trauma

   
   

   is credited.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

    
    

11. The evidence, which is not refuted, established that Jamal did not sustain 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 post-delivery period in a hospital. Therefore, Jamal is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by

Chanelle Huggins, individually and as parent of Jamal White, is dismissed with prejudice.

DONE AND ORDERED this 5th day of March, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 March, 2013.

COPIES FURNISHED:

(Via Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC Suite 830

801 North Orange Avenue Orlando, Florida 32801

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7012 1640 0000 7864 0552)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0569)

St. Joseph's Women's Hospital

3030 West Dr. Martin Luther King, Jr. Boulevard Tampa, Florida 33607

(Certified Mail No. 7012 1640 0000 7864 0576)

Natalia Camacho, M.D. Bay Area Womens Care

1055 South Fort Harrison Avenue Clearwater, Florida 33756

(Certified Mail No. 7012 1640 0000 7864 0583

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: 12-000854N

Orders for Case No: 12-000854N