STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN EUGENE JAMES AND DECEMBER

SABRINA JAMES, on behalf of and as parents and natural guardians of EMMA DEBORA JAMES, a minor,

vs.

Petitioners,

Case No. 14-5499N

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 July 16, 2015.

STATEMENT OF THE CASE

On November 18, 2014, Petitioners, Allen Eugene James and December Sabrina James, on behalf of and as parents and natural guardians of Emma Debora James (Emma), 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 Shannon Loe, M.D., as the physician providing obstetrical services at the birth of Emma on July 23, 2011, at Orange Park Medical Center located in Orange Park, Florida.

DOAH served NICA with a copy of the Petition on November 20, 2014. On December 1, 2014, DOAH received a return receipt from the United States Postal Service showing that Orange Park Medical Center had been served with a copy of the Petition. DOAH served Shanan Michelle Loe, M.D., with a copy of the Petition on December 19, 2014.

On July 16, 2015, NICA filed a Motion for Summary Final Order, asserting that Emma did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. An Order to Show Cause was entered on July 29, 2015, advising Petitioners to show cause in writing no later than August 13, 2015, why Respondent’s Motion for Summary Final Order should not be granted. To date, no response has been filed by Petitioners.

As of the date of this Summary Final Order of Dismissal, no petition to intervene has been filed by Dr. Loe or Orange Park

Medical Center.

FINDINGS OF FACT

1. Emma Debora James was born on July 23, 2011, at Orange Park Medical Center located in Orange Park, Florida. Emma weighed 3,894 grams at birth.

   
   

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Emma. In a medical report dated April 30, 2015, Dr. Willis opined in pertinent part as

   follows:

   
   

   Spontaneous vaginal delivery was complicated by a shoulder dystocia. Time from delivery of the head until completion of the delivery was two minutes. Birth weight was 3,894 grams or 8 lbs 9 oz’s.

   
   

   Apgar scores were 6/8. The baby was pale and responsive at birth. Only stimulation was required for resuscitation. The baby’s right arm was limp. Mild nasal flaring was present. The baby was taken to the NICU for management of mild respiratory distress.

   
   

   Respiratory distress resolved within 15 minutes of birth. Brachial plexus palsy was diagnosed. The baby was treated with antibiotics for two days due to maternal chorioamnionitis. Antibiotics were discontinued and the baby discharged home two days after birth.

   
   

   Summary: vaginal delivery at 39 weeks gestational age was complicated by a shoulder dystocia and resulting brachial plexus injury. Newborn hospital course was otherwise benign.

   
   

   This child suffered a brachial plexus injury at delivery. However, there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post delivery period.

   
   

3. Dr. Willis reaffirmed his opinion in an affidavit dated July 13, 2015, that Emma suffered a brachial plexus injury at delivery and that there was no apparent obstetrical event that

   
   

   resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery or the immediate post delivery period.

4. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Emma and to review her medical records. Dr. Duchowny examined Emma on April 22, 2015. In a medical report regarding his independent medical examination of Emma, Dr. Duchowny opined as follows:

   IN SUMMARY, Emma’s neurological examination reveals findings consistent with a right Erb’s palsy involving the C5 and C6 dermatomal segments. There is no involvement of the left upper extremity or the lower extremities and no other significant neurological findings. Her mental abilities are age-appropriate.

   
   

   * * *

   
   

   The findings of today’s evaluation together with the medical record review do not reveal a permanent or substantial mental or physical impairment due to oxygen deprivation or mechanical injury to the brain or spinal cord. Emma’s neurological injury involves cervical roots outside the spinal cord. I therefore do not believe that Emma should be considered for compensation within the NICA program.

   
   

5. In an affidavit dated July 14, 2015, Dr. Duchowny reaffirmed his opinion that his medical examination of Emma together with the medical record review does not reveal a permanent or substantial mental or physical impairment due to

   
   

   oxygen deprivation or mechanical injury to the brain or spinal cord.

6. 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 or spinal cord during labor, delivery, or the immediate post delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Duchowny’s opinion that Emma does not have a permanent or substantial mental or physical impairment due to oxygen deprivation or mechanical injury to the brain or spinal cord. 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, established that Emma did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery

period in a hospital. Therefore, Emma 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 Allen Eugene James and December Sabrina James, on behalf of Emma Debora James, is dismissed with prejudice. The hearing scheduled for

September 16, 2015, is cancelled.

DONE AND ORDERED this 27th day of August, 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 27th day of August, 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 0000 0359 3058)

Allen Eugene James December Sabrina James

7663 Plantation Bay Drive East Jacksonville, Florida 32244

(Certified Mail No. 7014 2120 0000 0359 3065)

Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A. Post Office Box 551

Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7014 2120 0000 0359 3072)

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 0000 0359 3089)

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 0000 0359 3096)

Shanan Michelle Loe, M.D. St. Vincent’s OB/GYN Roger Main Building

4203 Belfort Road, Suite 204

Jacksonville, Florida 32216

(Certified Mail No. 7014 2120 0000 0359 3102)

Orange Park Medical Center Attention: Risk Management 2001 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7014 2120 0000 0359 3119)

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: 14-005499N

Orders for Case No: 14-005499N