STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOKO LEWIS, on behalf of and as parent and natural guardian of LA’JORDAN V. TRIPP, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 13-2456N

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 Association (NICA), on January 15, 2016.

STATEMENT OF THE CASE

On July 3, 2013, Petitioner, Yoko Lewis, on behalf of and as parent and natural guardian of La’Jordan V. Tripp (La’Jordan), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition), with the Division of Administrative Hearings (DOAH). The Petition alleged that La’Jordan suffered brain damage as a result of a birth-related neurological injury.

The Petition named Dean E. Altenhofen, M.D., as the physician providing obstetric services at the birth of La’Jordan at Sacred Heart in Pensacola, Florida.

DOAH served NICA and Dean E. Altenhofen, M.D., on July 8, 2013. According to the United States Postal Service website, DOAH served Sacred Heart Hospital with a copy of the Petition on

July 8, 2013.

As of this date, neither Dr. Altenhofen nor Sacred Heart Hospital has petitioned to intervene in this proceeding.

On June 2, 2014, NICA filed a response to the Petition, giving notice that the injury does not "meet the definition of a 'birth-related neurological injury' as defined in section 766.302(2), Florida Statutes, which specifically requires that the injury render 'the infant permanently and substantially mentally and physically impaired.'" NICA requested that a hearing be scheduled to resolve whether the claim was compensable.

A final hearing was scheduled for October 14, 2014. On September 25, 2014, Petitioner filed an unopposed request for continuance, which was granted by Order dated September 26, 2014. On January 27, 2015, the parties then requested an additional six- month continuance, which was granted. The hearing was rescheduled for May 17, 2016. On January 15, 2016, NICA filed a Motion for Summary Final Order, which included in support of its motion a re- evaluation of La’Jordan by one of its experts, Dr. Michael

Duchowny. The motion was served by email on January 15, 2016. No response to the Motion was filed by Petitioner.

On January 28, 2016, an Order to Show Cause was entered which allowed Petitioner until February 10, 2016, to inform the undersigned as to why a Summary Final Order of Dismissal should not be entered and the case closed. To date, no response has been filed to the Motion for Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. La’Jordan V. Tripp was born on May 22, 2013, at Sacred Heart Hospital in Pensacola, Florida. La’Jordan weighed in excess of 2,500 grams at birth.

2. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review La’Jordan’s medical records. In a medical report dated April 18, 2014, Dr. Willis made the following findings and expressed the following opinion:

   In summary, repeat Cesarean section delivery was complicated by dense adhesions and a very difficult extraction of the baby. It took nineteen minutes to deliver the baby. Normal incision to delivery time would be five minutes or less. There were failed attempts to delivery using forceps and vacuum extractor. After a difficult delivery, the baby was depressed with cord blood pH of only

   6.8. The newborn hospital course was complicated by seizures and thrombocytopenia. EEG was abnormal and MRI showed evidence of a subdural hemorrhage.

   
   

   * * *

   
   

   The mother was not in labor. However, the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process and continued into the immediate resuscitation period. The oxygen deprivation resulted in brain injury. I am not able to comment about the severity of the brain injury.

   
   

3. Dr. Willis’ opinion that the difficult delivery resulted in loss of oxygen to the baby’s brain during the delivery process continuing into the immediate resuscitation period which resulted in brain injury is credited.

4. Respondent retained Michael Duchowny, M.D.

   
   

   (Dr. Duchowny), a pediatric neurologist, to evaluate La’Jordan. Dr. Duchowny reviewed La’Jordan’s medical records and performed an independent medical examination on him on May 7, 2014.

   Dr. Duchowny made the following findings and summarized his evaluation as follows:

   IN SUMMARY La’Jordan’s neurologic examination is significant only for mild generalized hypotonia with borderline delay of motor milestones and some oromotor incoordination. In other respects, his neurologic examination is normal and he is progressing satisfactorily from a developmental standpoint. Certainly, there are no specific focal or lateralizing findings noted today.

   
   

   A review of the medical records confirms the mother’s report of La’Jordan being delivered by repeat cesarean section. The prenatal history was positive for chronic hypertension and morbid obesity and delivery was difficult due to uterine adhesions. Ultimately, 19 minutes were required to deliver La’Jordan and forceps and vacuum provided assistance.

   
   

   Placental pathology was within normal limits. La’Jordan’s birth weight was recorded as 8 pounds 10 ounces and his Apgar scores were 1,

   4 and 6 at 1, 5 and 10 minutes. His cord blood gases were consistent with a metabolic acidosis as his arterial pH was 6.8 and venous pH 6.9. He was intubated only briefly in the delivery room for apnea and was extubated to room air at 30 minutes of life. A focal seizure led to a workup for possible sepsis and he was transiently treated with ampicillin, gentamycin and acyclovir until CFS cultures were negative at 48 hours. MRI scan of the brain performed on May 25, 2013 revealed a slight amount of hemorrhage over the tentorial region and interhemispheric fissure which were interpreted as subdural hematoma. I would question whether this was subarachnoid rather than subdural blood but I have not had an opportunity to review the films. An EEG performed one day later on

   May 26, 2013 demonstrated bilateral independent temporal abnormalities.

   
   

   In summary, the findings from today’s evaluation and medical review do not provide support for believing that La’Jordan has either a substantial mental or physical impairment. I therefore so not believe that he should be considered for compensation within the NICA Program.

   
   

5. Dr. Duchowny re-evaluated La’Jordan on September 16, 2015, and wrote a second report regarding that evaluation.

   In SUMMARY, La’Jordan’s neurologic examination reveals a significant expressive language delay and a less significant delay in receptive language skills. He has poor socialization, a short attention span and an impulsive behavioral style. These findings are consistent with a diagnosis of autism spectrum disorder. He additionally has a comorbid seizure disorder and hypotonia with developmental motor delay.

   
   

   These findings are likely due to prenatal antecedents and are not due to oxygen deprivation or mechanical injury in the course of labor or delivery. I believe that La’Jordan will continue to progress and I discussed the diagnosis of autism spectrum with the family and encouraged them to seek additional therapeutic input.

   
   

   I again do not recommend that La’Jordan be accepted for compensation within the NICA Program, and am happy to answer additional questions.

   
   

6. Dr. Duchowny’s opinion that La’Jordan’s injury is inconsistent with an injury to his brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is somewhat at odds with

   Dr. Willis’ opinion regarding the same issue.

   
   

7. However, in order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth-related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment.

8. Dr. Duchowny’s opinion that La’Jordan does not have a substantial mental or physical impairment is credited.

9. 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. Duchowny that La’Jordan does not have a substantial mental and physical impairment. While La’Jordan has

   
   

   some deficits, these deficits do not render him permanently and substantially mentally and physically impaired.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

    §§ 766.301-766.316, Fla. Stat. (2014).

    
    

11. The Plan was established by the Legislature "to provide compensation on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." § 766.301, Fla. Stat. The Plan applies only to a birth-related neurological injury, which 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis added).

    
    

12. 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. The Florida

    
    

    Birth-Related Neurological Injury Compensation Association, 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 submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury."

    § 766.305(4), Fla. Stat.

    
    

13. 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.

    
    

14. In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon all 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. 766.302(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.

       
       

15. In the instant case, Petitioner filed a claim alleging that La’Jordan did sustain a birth-related neurological injury that is compensable under the NICA plan. As the proponent of the issue of compensability, the burden of proof is upon Petitioner.

    § 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health &

    
    

    Rehab. Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he

    
    

    burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.").

16. While Dr. Willis established that there was an apparent obstetrical event which resulted in loss of oxygen to La’Jordan’s brain during the delivery process and continuing into the immediate resuscitation period that resulted in brain injury, the

    
    

    remaining issue to be determined is whether the injury resulted in a permanent and substantial mental impairment and a permanent and substantial physical impairment, inasmuch as both are required to establish compensability. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Div. of Admin. Hearings, 686 So. 2d 1349 (Fla.

    1997).

    
    

17. The evidence, which is not refuted, established that La’Jordan does not have a permanent and substantial physical impairment. Thus, La’Jordan is not entitled to benefits under the Plan.

CONCLUSION

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

That the Petition filed by Yoko Lewis, on behalf of and as parent and natural guardian of La’Jordan Lewis, is dismissed with prejudice, and the final hearing scheduled for May 17, 2016, is cancelled.

DONE AND ORDERED this 17th day of February, 2016, 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 17th day of February, 2016.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

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 1200 0002 3336 4020)

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

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: 13-002456N

Orders for Case No: 13-002456N