SMITH, on behalf of and as parents and natural guardians of DAQUAN T. SMITH, JR., a minor,
vs.
Case No. 17-0714N
Respondent.
This came before the undersigned upon Respondent’s Motion for Summary Final Order, filed on August 28, 2017. Concurrently with the filing of the motion, Respondent filed Physician Affidavits in Support of Respondent’s Motion for Summary Final Order. Petitioners did not file a response to the motion within the allowable response period.
The issue in this case is whether Daquan T. Smith, Jr. (Daquan) 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 (the Plan).
On January 20, 2017, Verdale T. Robinson and Daquan T. Smith, on behalf of and as parents and natural guardians of Daquan, filed a Petition for Benefits (claim) with the Division of Administrative Hearings (DOAH) alleging that Daquan 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); Norma Lillia Polyn Waite, M.D.; and Florida Hospital Altamonte (Florida Hospital), with a copy of the original claim under cover letter dated February 6, 2017. No parties intervened in this action.
On June 30, 2017, NICA responded to the Petition for Benefits and gave notice that NICA was of the view that the claim was not compensable because Daquan had not suffered a birth-related neurological injury as defined by section 766.302(2).
On August 1, 2017, the undersigned entered a Notice of Hearing and Order of Pre-hearing Instructions. Said Notice set the final hearing of this matter for November 8, 2017, in Orlando, Florida.
On August 28, 2017, Respondent filed a Motion for Summary Final Order and the aforementioned Physician Affidavits in
support of the Motion for Summary Final Order. Specifically, the affidavits were those of Donald C. Willis, M.D., and Laufey Sigurdardottir, M.D. Attached to each of the affidavits, and incorporated therein, were the written reports made by the physicians following their independent medical examinations of
Daquan.
Daquan was born on November 22, 2015, at Florida Hospital, 601 East Altamonte Drive, Altamonte Springs, Florida. The pregnancy, labor, and delivery of his mother, Verdale T. Robinson, were managed by employees of Florida Hospital and
Dr. Norma Waite.
At all times material, both Florida Hospital and Dr. Waite were active members under NICA pursuant to sections 766.302(6) and (7).
Daquan was born a live infant on November 22, 2015.
Daquan was a single gestation, weighing 2,730 grams at birth.
Daquan was delivered by Dr. Waite, who was a NICA participating physician on November 22, 2015.
Petitioners contend that Daquan suffered a birth- related neurological injury and seek compensation under the NICA Plan. Respondent contends that Daquan has not suffered a birth- related neurological injury as defined by section 766.302(2).
The medical records reviewed by Dr. Willis reflect that Daquan’s mother was admitted to the hospital at 36 6/7 weeks gestational age with vomiting, pain, and blood in the urine.
She was started on antibiotics for a suspected UTI and observed. Her blood pressure began to elevate, and she was transferred to Florida Hospital for high-risk consultation.
Labor was induced for suspected preeclampsia. The fetal heart rate (FHR) monitor during labor was reviewed. The initial FHR pattern showed a normal baseline rate and normal FHR variability. Variable decelerations with decreased variability developed about 30 minutes prior to delivery.
Daquan’s delivery was by spontaneous vaginal birth.
Daquan was initially depressed with Apgar scores 5/7/9. At birth, there was no respiratory effort, but heart rate was stated to be good. Bag and Mask ventilation was started without improvement. Daquan required intubation for respiratory distress and quickly improved, allowing extubation to nasal CPAP. Daquan started crying and his muscle tone improved. At this point Daquan was transferred to the NICU.
The initial blood gas was a venous gas done about
15 minutes after birth and the pH level was 7.23, with a normal base excess. The initial arterial blood gas was done 90 minutes after birth, again with a normal pH level of 7.4.
Apnea and bradycardia occurred with onset of seizure activity about 14 hours after birth. Oxygen desaturations were in the ‘70s. Bag and mask ventilation was required for a short period of time, followed by nasal oxygen. Phenobarb was started to control seizure activity.
Daquan’s EEG readings were abnormal, confirming seizure activity. Head Ultrasound was normal. CT scan on DOL 2 showed minimal acute intraventricular hemorrhage and a subdural hemorrhage. MRI at seven weeks showed evidence of brain injury with volume loss.
At the request of NICA, Dr. Willis, who is board- certified in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records relating to Daquan’s birth. In his report dated June 21, 2017, Dr. Willis opined that,
[t]here was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period.
At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board-certified in neurology, reviewed Daquan’s medical records and performed an independent medical examination of Daquan on May 17, 2017. Dr. Sigurdardottir opined, in pertinent part, that:
Daquan is a 17 month old with history of neonatal seizures, after induced labor for maternal hypertension and pyelonephritis.
No evidence of acute hypoxic episode during active labor and blood gas within hour after birth did not indicate significant asphyxia. MRI performed at 6 weeks of age does have some findings consistent with hypoxic ischemic injury but timing is hard to determine as being within active labor and delivery. Patient has delays in his development but as he is able to walk unassisted (short distances) at 17 months and is using gestures for yes and no, I do not feel that he has established permanent substantial motor and mental disability at this time.
Result of question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Daquan is found to have delays in motor and language development but is making progress and is walking independently at this time therefore a permanent and substantial physical and mental impairment cannot be determined at this juncture.
Result of question 2 [If so, was such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, although having respiratory distress shortly after birth, there is no clear acute hypoxic event during labor and/or delivery, and fetal heart rate strips were benign. Laboratory tests were not indicative of an acute hypoxic injury.
Neonatal seizures were seen but this does not give us a clear timeframe for timing of injury.
Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor and mental
recovery is guarded but his life expectancy is full.
Dr. Sigurdardottir's Affidavit reflects her ultimate opinion that "the IME and record review do not support a finding that Daquan suffered a 'birth-related neurological injury.'”
Dr. Willis's and Dr. Sigurdardottir's opinions both support a finding that there was no injury to the brain or spinal cord of the infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period, which rendered the infant permanently and substantially mentally and physically impaired.
Petitioners 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 Daquan 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 no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery or the immediate post delivery period" and Dr. Sigurdardottir's opinion that "the IME and record review do not support a finding that Daquan suffered a ‘birth-related neurological injury’" and "I do not feel that he has established permanent substantial motor and mental disability at this time" are 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
