STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER AND SHONA BASELICE,

on behalf of and as parents and natural guardians of JACOB BASELICE, a minor,

vs.

Petitioners,

Case No. 14-3154N

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 December 9, 2014.

STATEMENT OF THE CASE

On June 30, 2014, Petitioners, Christopher and

Shona Baselice, on behalf of and as parents and natural guardians of Jacob Baselice (Jacob), 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

Shrusan Gray, M.D., as the physician providing obstetrical services at the birth of Jacob on July 19, 2010, at Memorial Hospital Miramar located in Miramar, Florida.

DOAH served NICA with a copy of the Petition on July 11, 2014. DOAH served Memorial Hospital Miramar with a copy of the Petition on October 9, 2014. DOAH served a copy of the Petition on Dr. Gray on July 14, 2014.

Neither Shrusan Gray, M.D., nor Memorial Hospital Miramar has petitioned to intervene in this proceeding.

On December 9, 2014, NICA filed a Motion for Summary Final Order, asserting that Jacob 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 United States Mail on December 9, 2014. As of the date of this Summary Final Order of Dismissal, Petitioners have not filed a response to the Motion for Summary Final Order.

FINDINGS OF FACT

1. Jacob Baselice was born on July 19, 2010, at Memorial Hospital Miramar located in Miramar, Florida. Jacob weighed 6 pounds 2 ounces at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jacob. In an affidavit dated December 3, 2014, Dr. Willis described his findings in pertinent part and gave the following opinion:

   
   

   It is my opinion that SHONA BASELICE’s term pregnancy ended with a spontaneous vaginal delivery of a healthy newborn. The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. The newborn hospital course was uncomplicated. Several months after hospital discharge, the baby was diagnosed with developmental delay and brain injury, documented by MRI.

   
   

   This child has a brain injury, as documented by MRI. However, the injury does not appear to be birth related. Unlike this case, babies with a birth related hypoxic brain injury are generally depressed at birth and have a complicated newborn hospital course.

   
   

   As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period.

   
   

3. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Jacob and to review his medical records. Dr. Duchowny examined Jacob on October 8, 2014. In a report dated October 14, 2014, Dr. Duchowny opined as

   follows:

   
   

   In summary, Jacob’s neurological examination reveals findings consistent with global developmental delay and a substantial mental and motor impairment. He evidences spastic quadriparesis, absence of expressive and receptive communication skills, and four limb involvement with hypotonia, dystonic postures and athetoid movement. He has dysmorphic features and unexplained corneal clouding.

   Jacob’s motor findings are consistent with a diagnosis of ataxic hypotonic cerebral palsy.

   
   

   I had an opportunity to review medical records which were sent on August 21, 2014.

   
   

   They reveal that Jacob’s mother was a carrier for cystic fibrosis and that her alpha- fetoprotein was elevated during pregnancy.

   Jacob was born after spontaneous rupture of membranes and delivered vaginally. His Apgar scores were 9 & 9 at 1 and 5 minutes and he had a loose double nuchal cord that was easily removed. He was resuscitated easily. His birth weight was 6 pounds 2 ounces. The amniotic fluid was clear.

   
   

   I believe that Jacob’s findings are most consistent with a prenatally acquired syndrome, given his dysmorphic features and corneal clouding. The medical records do not provide evidence to suggest that Jacob’s neurological impairment resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. It would be useful, however, to review his MRI scans and I would request an opportunity to review them. However, pending any unexpected findings from the MRI review, I believe that Jacob should not be considered for compensation within the NICA program.

   
   

4. In an addendum to his report dated November 19, 2014, Dr. Duchowny opined:

   I reviewed an MRI scan of the brain for Jacob Baselice obtained on August 24, 2011. This study revealed abnormalities consistent with periventricular leukomalacia as well as

   immature delayed myelination. These findings are consistent with both prenatal and perinatally-acquired brain injury. However, based on the clinical findings, I continue to believe that Jacob’s neurological problems did not result from either mechanical injury or oxygen deprivation at birth.

   
   

5. Dr. Duchowny reaffirmed his opinions and conclusions in an affidavit dated December 4, 2014.

   
   

6. A review of the file in this case reveals that there have been no 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 labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no contrary opinions filed that are contrary to Dr. Duchowny’s opinion that although Jacob has a substantial mental and motor impairment, the medical records and clinical findings do not provide evidence that his neurological injury resulted from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

8. 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.

9. 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.

10. 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.

    
    

11. 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.

       
       

12. 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.

    
    

13. The evidence, which is not refuted by any contrary expert opinions, established that Jacob 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. Therefore, Jacob 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 Christopher and Shona Baselice, on behalf of and as parents of Jacob Baselice, is dismissed with prejudice, and the final hearing scheduled for April 9, 2015, is canceled.

DONE AND ORDERED this 8th day of January, 2015, 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 8th day of January, 2015.

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)

(Certified Mail No. 7014 2120 0003 1053 1088)

Joan Martin, Esquire

Joan E. Martin, Attorney and Counselor at Law 2001 Southwest 96th Terrace

Miramar, Florida 33025 (eServed)

(Certified Mail No. 7014 2120 0003 1053 1095)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

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 1053 1125)

Memorial Hospital Miramar Attention: Risk Management 1901 Southwest 172nd Avenue Miramar, Florida 33029

(Certified Mail No. 7014 2120 0003 1053 1132)

Shrusan Emily Gray, M.D. 10067 Pines Boulevard Pembroke Pines, Florida 33025

(Certified Mail No. 7014 2120 0003 1053 1149)

Shrusan Emily Gray, M.D.

3990 Sheridan Street, Suite 201

Hollywood, Florida 33021

(Certified Mail No. 7014 2120 0003 1053 1156)

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: 14-003154N

Orders for Case No: 14-003154N