STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTY GONZALEZ (mother), on behalf of and as natural guardian of JACOB MICHAEL McGOWAN, a minor,
vs.
Petitioner,
Case No. 16-2332N
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
Respondent.
/
FINAL ORDER
This came before the undersigned upon a Joint Motion to Submit Stipulated Factual Record in Lieu of a Contested Hearing which was granted by this Court on March 31, 2017; a Stipulated Record; and written arguments/proposed final orders submitted by the parties.
STATEMENT OF THE ISSUES
The issue in this case is whether Jacob McGowan (Jacob) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
PRELIMINARY STATEMENT
On March 29, 2016, Christy Gonzalez, on behalf of and as natural guardian of Jacob, filed a Petition for Benefits (claim) with the Division of Administrative Hearings (DOAH) alleging that Jacob suffered a birth-related neurological brain and/or spinal cord injury and requesting benefits under section 766.301, et seq., Florida Statutes.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA); Diomel Marisigan De La Cruz, M.D.; Julie S. Baines, M.D.; Donald E. Kickerbocker, M.D.; and
Health Hospital, with a copy of the original claim under cover letter dated April 27, 2016. No parties intervened in this action.
On September 16, 2016, NICA responded to the Petition for Benefits and gave notice that NICA was of the view that the claim was not compensable because Jacob had not suffered a birth-related neurological injury as defined by section 766.302(2).
At the request of, and by agreement of, the parties, the undersigned entered a Notice of Hearing by Video Teleconference and Order of Pre-Hearing Instructions on November 9, 2016. Said Notice set the final hearing of this matter for April 11, 2017.
Upon Joint Motion to Submit Stipulated Factual Record in Lieu of a Contested Hearing, the final hearing set for April 11, 2017, was cancelled and by Order dated April 3, 2017, the parties were directed to submit their stipulated record no later than April 7, 2017, and any written arguments and/or proposed final orders no later than April 14, 2017.
The parties' Stipulated Record was filed on April 7, 2017, and the following were thereby admitted into evidence without objection of any party:
JOINT EXHIBIT A: Medical records of Christy Gonzalez from Shands at the University of Florida (J-00001 through J-00442)
JOINT EXHIBIT B: Medical records of Jacob McGowan from Shands at the University of Florida (J-00443 through J-00767)
JOINT EXHIBIT C: Medical records of Jacob McGowan from UF Health Physicians (J-00768 through J-00771)
JOINT EXHIBIT D: Medical records of Jacob McGowan from Palms Medical Group (J-00772 through J-00790)
JOINT EXHIBIT E: Medical records of Jacob McGowan from North Florida Pediatrics
(J-00791 through J-00814)
JOINT EXHIBIT F: Petitioner's Answers to Interrogatories (J-00815 through J00821)
JOINT EXHIBIT G: Report of Dr. Donald G. Willis, M.D. (J-00822 through J-00823)
JOINT EXHIBIT H: Report of Dr. Laufey Sigurdardottir (J-00824 through J-00827)
Upon Petitioner's Request for Additional Time to Submit Written Argument, an Order was entered on April 12, 2017, giving the parties until April 21, 2017, to file their written arguments and/or proposed final orders. Both parties timely filed Proposed Final Orders, which have been carefully considered in the preparation of this Final Order.
FINDINGS OF FACT
Jacob was born on July 2, 2015, at Shands at the University of Florida (Shands), Gainesville, Alachua County, Florida. The pregnancy, labor, and delivery of his mother, Christy Gonzalez, were managed by employees of UF Health Physicians and employees of Shands.
At all times material, both the hospital and the physicians group were active members under NICA pursuant to sections 766.302(6) and (7).
Christy Gonzalez, age 32, presented to Shands on July 1, 2015. This was her second pregnancy. Ms. Gonzalez's prior pregnancy resulted in an emergency cesarean section at
37 weeks after a failed induction/arrest of labor due to gestational hypertension. Based on orders given by OBGYN Georgia Graham, M.D., Christy Gonzalez was admitted to the Labor and Delivery Suite at approximately 12:05 p.m.
Ms. Gonzalez was started on Pitocin at 2:47 p.m. for induction/augmentation. Labor progressed slowly over the next
approximate 30 hours during which time Ms. Gonzalez continued on Pitocin and exhibited several periods of ongoing and apparent uncontrolled maternal hypertension. Fetal heart monitoring started at 8:13 a.m. on July 1, 2015, and, as labor progressed, the fetal heart rate pattern demonstrated accelerations, and late and early/variable decelerations. The fetal heart rate reached 90 and below at numerous points throughout the day on July 1, 2015, including at 9:34 a.m., 9:54 a.m., 11:04 a.m.,
11:10 a.m., 1:05-1:48 p.m. (multiple decelerations),
2:11-2:15 p.m., 2:16-2:18 p.m., 2:31 p.m., and 9:36-9:38 p.m.
On July 2, 2015, the fetal heart rate continued to demonstrate accelerations and decelerations with "High FHR" noted at 8:56 p.m. (156/67), as well as 9:15 p.m. and 9:21 p.m. The fetal monitor strips indicate prolonged periods of fetal distress throughout this long period of labor. At approximately 11:00 p.m. on July 2, 2015, Ms. Gonzalez was taken into the operating room for emergency cesarean section due to decreased variability and repetitive decelerations in the fetal heart rate.
Jacob was born a live infant at 11:42 p.m. on July 2, 2015. Jacob was a single gestation, weighing 4,366 grams at birth.
Jacob was delivered by Dr. Anushka Chelliah, who was a NICA participating physician on July 2, 2015.
Petitioner contends that Jacob suffered a birth-related neurological injury and seeks compensation under the NICA Plan. Respondent contends that Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2).
Jacob was born via cesarean section secondary to failed induction and vaginal birth after cesarean section, and non- reassuring fetal heart rate tracing and nuchal cord. Jacob was delivered with no respiratory effort and a heart rate less
than 60. Post-birth resuscitation included tactile stimulation, intubation, suctioning, and positive pressure ventilation. His Apgar scores were 1 at one minute, 3 at five minutes and 4 at
10 minutes. Physical examination at birth revealed he was pale, had poor tone and negative grasp, and poor moro and suck reflexes. Following color change and rise in his heart rate and increasing oxygen saturations, Jacob was transferred to the neonatal intensive care unit (NICU) for further management.
Initial assessment of Jacob included intrapartum fetal asphyxia, chorioamnionitis affecting fetus or newborn, meconium aspiration, injury to scalp secondary to birth trauma, respiratory failure of newborn, and HIE (hypoxic-ischemic encephalopathy) for which HIE protocol for cooling was initiated. Upon arrival to the NICU, Jacob was initially placed on a conventional ventilator with oxygen saturations in the
upper 80s. He was quickly transitioned to a high frequency ventilator/oscillator with excellent response.
Jacob’s initial blood gas showed good ventilation and medical personnel were able to sequentially wean his amplitude, and he was started on 100-percent oxygen. He was passively cooled until three hours of life when active cooling was started. By 12:46 a.m., physical examination showed a more reassuring neurological examination, although high risk for seizures and neurologic sequelae was noted.
Physical examination at four hours of life revealed Jacob was pink, alert, reacting appropriately to stimulation, reactive to light, had a positive suck reflex, gag reflex, mildly increased tone in all extremities, reflexes of 3+ in his lower extremities, 2+ in his upper extremities, slow grasp in feet and brisk grasp in hands.
Jacob was discharged from the hospital on August 10, 2015 (day of life 39). His hospital course was complicated by glucose and electrolyte derangements, adrenal hemorrhage, seizures, hypotension, coagulopathy, E coli sepsis with presumed meningitis and poor feeding.
The hospital discharge summary reflects that he was actively moving all extremities, had received antibiotics secondary to E coli sepsis and suspect meningitis, was weaned
from the ventilator to a continuous positive airway pressure machine (CPAP) at five days of life and had been stable on room air since July 11, 2015, was discharged with 10 mg of phenobarbital every 12 hours, that a physical exam revealed a mildly hypotonic normal male and that he had been on full oral feeding since August 3, 2015, with an appropriate weight gain pattern at discharge.
The neurological status section of the hospital discharge summary reflects that Jacob's initial MRI on July 6, 2015, showed evidence of frontal and occipital cortical and subcortical injury globally. A repeat MRI on July 12, 2015, showed improvement in cortical injury with some evidence of injury over the head of the left caudate. He initially had seizure activity on EEG and was loaded with phenobarbital. The last two continuous EEGs on July 11, 2015, and July 16, 2015, however, showed no seizure activity, and the plan was to allow him to outgrow his phenobarbital dose.
On August 12, 2015, Jacob presented to his pediatrician for a well child visit. At this time difficulty breast feeding was reported by the mother. The pediatrician noted "no obvious developmental delays or difficulties" and "great tone." Counseling was given on breast feeding and feeding, and orders were given for evaluation and treatment by ophthalmology and occupational therapy.
On August 24, 2015, Jacob presented to his pediatrician for sores in his mouth and feeding problems, and fussiness with spit up and vomiting in preceding days. He was on no medications at this time. His physical exam was normal. Neurological exam was also normal with present and normal newborn reflexes noted. "Great weight gain" was noted. Counseling was given concerning gastroesophageal reflux disease (GERD) and feeding.
On September 3, 2015, Jacob presented to his pediatrician for a well child visit. At this time, his mother was curious as to whether he needed therapy for motor development. He was noted to be feeding well and complete resolution of his GERD symptoms was noted. Medications at that time included only ranitidine syrup (a stomach acid reducer). All areas of development were noted to be normal for his age and a physical examination, including neurological examination, were also normal. The pediatrician noted in assessment that although the mother reported a diagnosis of brain damage, her concerns regarding motor skills were not apparent, as Jacob was noted to be moving well, trying to roll, could lift his head, and was grasping a rattle in his stroller--all of which were noted to be "very impressive for 2 months."
On October 29, 2015, Jacob presented to his pediatrician with complaints of right ear pain and discharge,
low-grade fever, tugging at his ear, and fussiness. Medications at this time included only ranitidine syrup. A physical exam was normal with the exception of crusty discharge noted in his ears. He was prescribed antibiotics and ranitidine was refilled.
On November 10, 2015, Jacob presented to his pediatrician with complaints of congestion and ear drainage. There were no concerns with Jacob's feeding at this time, and he was noted to eat baby food and use a bottle. Medications at this time included only ranitidine syrup. His physical exam was normal with the exception of erythematous noted in both ears. Antibiotics were prescribed.
On November 23, 2015, Jacob presented to his pediatrician for a well child visit. At this time Jacob was taking ranitidine daily for GERD and was in physical therapy/occupational therapy for delayed milestones and trouble sucking. He was noted to be eating solid foods since
three months of age, eating baby food, and using a bottle. Ranitidine was refilled. "All areas of development are appropriate for age" was noted. A physical exam was normal. Plans for future care included continued use of ranitidine for GERD, continued therapies for delayed milestones, and a referral to otolaryngology for audiometry.
On January 6, 2016, Jacob presented to his pediatrician for a six-month follow-up visit. At this time it was noted that he was getting occupational and physical therapy weekly. It was also noted that he had been diagnosed with hand, foot, and mouth disease and had spots in his throat and discharge from his right ear. The only medication at this time was ranitidine, which was refilled. No concerns with his nutrition were noted. Developmental history testing revealed a “pass” in all areas, except difficulty rolling left to right and sitting alone. Allergic rhinitis symptoms were noted, however, a physical exam was normal. Plans for future care on this visit included referral for a failed hearing screening, continued ranitidine, and continued occupational therapy.
At the request of NICA, Donald C. Willis, M.D., who is board-certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through E. In his report dated August 10, 2016, Dr. Willis opined that,
[t]here was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury. I am unable to comment about the severity of the brain injury.
At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed the medical
records included in the Stipulated Record as Joint Exhibits A through E, and performed a thorough examination of Jacob on August 31, 2016. Dr. Sigurdardottir's report, dated August 31, 2016, reveals that Jacob's mother gave an "excellent history and timeline of the pregnancy with Jacob, his birth, and aftermath." Jacob's developmental history is reported by Dr. Sigurdardottir to include walking independently between 11 and 12 months of age; speaking five words; and report by mother of some hand tremors when reaching for objects. Jacob is noted to have been weaned from phenobarbital at six months of age and he has had no further seizure activity.
Dr. Sigurdardottir's neurological exam revealed a pleasant and interactive boy interested in his surroundings. His motor exam revealed symmetric, normal muscle tone and equal use of both extremities. His gait was symmetric and seemed age appropriate. His reflexes were present and at times slightly increased, but never spread from right to left. Balance and coordination were noted to be difficult to fully assess, but seemed to be within normal limits for his age. He manipulated toys in a conventional manner with no autistic characteristics or repetitive behaviors seen. Dr. Sigurdardottir noted that Jacob had made a remarkable recovery and that there were no obvious abnormalities noted upon neurologic exam.
Dr. Sigurdardottir concluded her report with her opinions that,
The patient is found to have no substantial physical and/or mental impairment at this time.
Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related.
At this time, Jacob's prognosis for life expectancy and full recovery is good.
Petitioner did not submit or introduce into evidence any expert reports rebutting the opinions of Dr. Willis or Dr. Sigurdardottir.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 766.301-766.316, Fla. Stat. (2016).
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).
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 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 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.
In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon all 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.766.302(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.
In the instant case, Petitioner filed a claim alleging that Jacob 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 HRS,
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.").
Dr. Willis' opinion that "[t]here was an apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period" and that oxygen deprivation resulted in brain injury, and Dr. Sigurdardottir's opinion that "Jacob did have a neurological injury to the brain due to oxygen deprivation, and his hypoxic ischemic encephalopathy is felt to be birth related" are credited.
Likewise, Dr. Sigurdardottir's unrebutted opinion that Jacob has have no substantial physical and/or mental impairment and that his prognosis for life expectancy and full recovery is good is also credited.
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. Fla.
Birth-Related Neurological Injury Comp. Ass'n v. Div. of Admin.
Hearings, 686 So. 2d 1349 (Fla. 1997).
The evidence in this case reveals that there have been no expert opinions filed that are contrary to the opinion of
Dr. Sigurdardottir that Jacob does not have a permanent and substantial mental or physical impairment. Thus, Jacob has not suffered a birth-related neurological injury as defined by section 766.302(2), and is therefore 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 Christy Gonzalez, on behalf of and as natural guardian of Jacob McGowan, is dismissed with prejudice.
DONE AND ORDERED this 27th day of June, 2017, in Tallahassee, Leon County, Florida.
S
W. DAVID WATKINS 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 June, 2017.
COPIES FURNISHED:
(via certified mail)
Kenney Shipley, Executive Director Florida Birth Related Neurological
Injury Compensation Association
2360 Christopher Place, Suite Tallahassee, Florida 32308 (eServed) | 1 | ||
(Certified Mail No. 7016 2710 | 0000 | 4543 | 0590) |
Brooke M. Gaffney, Esquire Smith Bigman Brock 444 Seabreeze Boulevard Daytona Beach, Florida 32118 (eServed) (Certified Mail No. 7016 2710 | 0000 | 4543 | 0606) |
Paul Heath Brockwell, Esquire The Brockwell Firm 2029 North Third Street Jacksonville Beach, Florida | 32250 | ||
(eServed) (Certified Mail No. 7016 2710 0000 | 4543 | 0613) | |
Amie Rice, Investigation Manager Consumer Services Unit Department of Health 4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275 (Certified Mail No. 7016 2710 0000 | 4543 | 0620) | |
Justin Senior, Secretary Health Quality Assurance
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
(Certified Mail No. 7016 2710 0000 4543 0637)
Donald E. Knickerbocker, M.D. UF Health Shands Hospital 4002 Northwest 22nd Drive Gainesville, Florida 32605
(Certified Mail No. 7016 2710 0000 4543 0644)
Julie S. Baines, M.D. UF Health Shands Hospital 4002 Northwest 22nd Drive Gainesville, Florida 32605 | ||
(Certified Mail No. 7016 2710 0000 | 4543 | 0651) |
UF Health Hospital Attention: Risk Management 4002 Northwest 22nd Drive Gainesville, Florida 32605 (Certified Mail No. 7016 2710 0000 | 4543 | 0668) |
Diomel Marisigan De La Cruz, M.D. UF Health Shands Hospital 4002 Northwest 22nd Drive Gainesville, Florida 32605 (Certified Mail No. 7016 2710 0000 | 4543 | 0675) |
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).
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 2017 | DOAH Final Order | Child does not have a permanent and substantial physical impairment. Therefore, he is not eligible for NICA benefits. |
