PRICE, Individually and on behalf of AURORA PRICE, a minor,
Petitioners,
vs.
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, a/k/a NICA,
Case No. 14-5123N
Respondent,
and
UNIVERSITY OF FLORIDA BOARD OF TRUSTEES AND SHANDS TEACHING HOSPITAL AND CLINICS, INC., d/b/a UNIVERSITY OF FLORIDA HEALTH SHANDS HOSPITAL,
Intervenors.
/
PARTIAL SUMMARY FINAL ORDER
This cause came on for consideration upon Respondent’s Motion for Summary Final Order filed on August 27, 2015, by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA).
STATEMENT OF THE CASE
On October 24, 2014, Petitioners, John Garrett Price and Miranda E. Price, individually and on behalf of Aurora Price (Aurora), a minor, filed a Petition Under Protest 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 Shireen Madani Sims, M.D., as the physician who provided obstetric services at the birth of Aurora on May 5, 2012, at Shands at the University of Florida (Shands), in Gainesville, Florida.
DOAH served NICA with a copy of the Petition on October 31, 2014. DOAH served Shireen Madani Sims, M.D., with a copy of the Petition on November 3, 2014. DOAH served Shands with a copy of the Petition on November 19, 2014.
On November 24, 2014, Petitions to Intervene were filed by both the University of Florida Board of Trustees and Shands Teaching Hospital and Clinics, Inc., d/b/a University of Florida Health Shands. On December 9, 2014, an Order was entered granting both petitions to intervene.
On August 27, 2015, NICA filed a Motion for Summary Final Order on the issue of birth-related neurological injury. On September 9, 2015, the Intervenors filed a Joint Notice of Joinder in Respondent’s Motion for Summary Final Order. On September 15, 2015, Petitioner filed an Objection/Response to Respondent’s Motion for Summary Final Order. On September 24, 2015, Respondent filed a response to Petitioners’
Objection/Response to Respondent’s Motion for Summary Final
Order.
FINDINGS OF FACT
Aurora Price was born on May 5, 2012, at Shands at the University of Florida, in Gainesville, Florida. Aurora weighed in excess of 2,500 grams at birth.
Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Aurora and her mother. In a report dated December 15, 2014, Dr. Willis summarized his findings as follows:
In summary, labor was induced for post-dates and complicated by shoulder dystocia. The baby was depressed at birth and had a complicated hospital course with multisystem organ failure, consistent with birth hypoxia. Seizure activity was present shortly after birth. MIR was consistent with a hypoxic event.
There was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during delivery and continuing into the immediate post delivery period. I do not have an opinion about any oxygen deprivation during labor, since the FHR monitor tracings were not available. The oxygen deprivation at birth resulted in brain injury. I am not able to comment about the severity of the brain injury.
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. The opinion of Dr. Willis that Aurora did
suffer an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post-delivery period, which resulted in severe brain injury and death, is credited.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.
§§ 766.301-766.316, Fla. Stat.
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.
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.
If NICA determines that the injury alleged in a claim is a compensable brain-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. The administrative law judge must make the following determination based upon the available
evidence:
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).
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.
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.
The evidence, which is unrebutted, established that Aurora did sustain an injury to the brain caused by oxygen deprivation occurring during labor, delivery and continuing into the immediate post-delivery period which resulted in severe brain injury and death. Thus, Aurora sustained a birth-related neurological injury and is eligible for benefits under the Plan.
