STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NERLINE TERMIDOR, on behalf of and as parent and natural guardian of MIRACLE R. TERMIDOR, a minor,

vs.

Petitioner,

Case No. 16-1388N

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

August 29, 2016.

STATEMENT OF THE CASE

On March 10, 2016, Petitioner, Nerline Termidor, on behalf of and as parent and natural guardian of Miracle R. Termidor (Miracle), 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 Karen Saver,

ARNP, as the person providing obstetrical services at the birth of Miracle on September 6, 2012, at Northwest Medical Center located in Margate, Florida.

DOAH served NICA with a copy of the Petition on March 16, 2016. On April 13, 2016, DOAH received a return receipt from the United States Postal Service showing that Karen Saver, ARNP, had been served with a copy of the Petition. On March 21, 2016, DOAH received a return receipt from the United States Postal Service showing that Northwest Medical Center had been served with a copy of the Petition.

As of the date of this Summary Final Order of Dismissal, neither Northwest Medical Center nor Karen Saver, ARNP, has petitioned to intervene in this proceeding.

On August 29, 2016, NICA filed a Motion for Summary Final Order, asserting that Miracle 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 August 29, 2016. An Order to Show Cause was entered on September 13, 2016, advising Petitioner to show cause in writing why Respondent’s Motion for Summary Final Order should not be granted. As of today’s date, no response has been filed to the Motion for Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. Miracle Termidor was born on September 6, 2012, at Northwest Medical Center located in Margate, Florida. Miracle weighed 3,550 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Miracle, to determine whether an injury occurred 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 medical report dated July 7, 2016, Dr. Willis described his findings in part as follows:

   Vaginal delivery was complicated by a shoulder dystocia. There was only a 20 second delay from delivery of the head until delivery was completed. Birth weight was 7 pounds 13 oz’s or 3,550 grams.

   
   

   The baby was not depressed at birth. Apgar scores were 9/9. The baby’s left arm had decreased movement. Erb’s palsy was diagnosed. X-Rays showed no bone fractures. The newborn course was complicated only by the Erb’s palsy. Discharge was on DOL 2. No EEG’s or head imaging studies were done.

   
   

   In summary, delivery was complicated by a mild shoulder dystocia with only a 20 second delay in delivery. The baby was not depressed, but did suffer an Erb’s palsy.

   The newborn hospital course was otherwise uncomplicated.

   
   

   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 August 5, 2016.

4. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Miracle and to review his medical records. Dr. Duchowny examined Miracle on June 15, 2016. In an affidavit dated August 8, 2016, Dr. Duchowny opined as follows:

   It is my opinion that Miracle’s neurological examination is significant for findings consistent with a left Erb’s palsy affecting the 5th and 6th cervical dermatomes. There is, however, no evidence of central nervous system involvement of the brain or spinal cord as the remainder of her neurological examination is within normal limits. Based on these findings, I am not recommending Miracle for compensation within the NICA program.

   
   

5. 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 expert opinions filed that are contrary to

   Dr. Duchowny’s opinion that while Miracle’s examination is consistent with a left Erb’s palsy, there is no evidence of

   
   

   central nervous system involvement of the brain or spinal cord, and that the remainder of Miracle’s neurological exam is within normal limits. Dr. Duchowny’s opinion is credited.

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

7. 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.

8. 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.

9. 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.

   
   

10. 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.

       
       

11. 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.

    
    

12. The evidence, which is not refuted, established that Miracle 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 the immediate post-delivery period which rendered her permanently and substantially mentally and physically impaired. Therefore, Miracle is not eligible for benefits under the Plan. §§ 766.302(2) and 766.309(1), Fla.

Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Nerline Termidor, on behalf of and as parent and natural guardian of Miracle Termidor, is dismissed with prejudice.

DONE AND ORDERED this 5th day of October, 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 5th day of October, 2016.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

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 3050 0001 0080 3518)

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: 16-001388N

Orders for Case No: 16-001388N