STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT CLOSE AND DANIELLE

ANGELO, as parents and natural guardians of HARPER CLOSE, a minor,

vs.

Petitioners,

Case No. 17-6598N

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 February 26, 2018.

STATEMENT OF THE CASE

On December 4, 2017, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for the determination of compensability under the Florida Birth- Related Neurological Injury Compensation Plan (Plan). The Petition named Charlene Okomski, D.O., as the physician who provided obstetric services at the birth of Harper Close on

June 5, 2017, at Bayfront Health Port Charlotte, in Port Charlotte, Florida.

DOAH served Charlene Okomski, D.O. with a copy of the Petition on December 11, 2017, and upon Bayfont Health Port Charlotte on December 28, 2017. NICA was also served with a copy of the Petition.

On February 12, 2018, NICA filed its response to the Petition, suggesting that the subject claim was not compensable and requesting that a hearing be scheduled to address such issue. On February 13, 2018, the undersigned issued an Order directing the parties to confer and advise whether a final hearing would be required. On February 26, 2018, NICA filed a response indicating that, despite its efforts, it had been unable to obtain Petitioners’ opinion. Petitioners did not respond to the Order.

On February 16, 2018, NICA also filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Harper Close did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes. On April 2, 2018, the undersigned issued an Order to Show Cause directing Petitioners to show cause, in writing, on or before April 11, 2018, why NICA’s motion should not be granted and a final summary order be entered finding that Petitioners’ claim is

not compensable. Petitioners did not respond to the Order to

Show Cause.

FINDINGS OF FACT

1. Harper Close was born on June 5, 2017, at Bayfront Health Port Charlotte in Port Charlotte, Florida.

2. Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records of Harper Close, and her mother, Danielle Angelo, and to opine whether an injury occurred in the course of labor, delivery or resuscitation in the immediate post-delivery period at Bayfront Health Port Charlotte due to oxygen deprivation or mechanical injury. In a report dated December 30, 2017,

   Dr. Willis described his findings in pertinent part as follows:

   
   

   In summary: The prenatal course was essentially benign. The mother presented in labor at term. Vacuum delivery was done for fetal tachycardia and variable. FHR decelerations. The baby was not depressed at birth. Apgar scores were 7/9 without the need for resuscitation. Cord blood gas (venous) had a pH of 7.23, suggesting the baby was not hypoxic or acidotic during labor and delivery. The baby was stable enough to remain with the mother until about 30 minutes after birth. This would be consistent with no oxygen deprivation during the immediate post-delivery period. After the post- delivery period, respiratory distress developed and MAS was diagnosed. A complicated newborn hospital course followed. Fortunately, head ultrasound and MRI did not have findings suggestive of HIE or brain injury.

   
   

   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. Respiratory distress due to meconium aspiration syndrome became apparent after the post-delivery and resulted in a complicated newborn hospital course.

   
   

3. Attached to Respondent’s Motion for Summary Final Order is the affidavit of Dr. Willis, dated February 22, 2018. In his affidavit, Dr. Willis affirms the findings in his above-quoted report and maintains that his opinions are within a reasonable degree of medical probability.

4. NICA also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review Harper Close and Danielle Angelo’s medical records, conduct an Independent Medical Examination of Harper Close, and opine as to whether Harper Close suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Duchowny reviewed the medical records, obtained historical information from Robert Close and Danielle Angelo, and performed an evaluation on February 7, 2018.

5. In a report authored after the neurological evaluation, Dr. Duchowny summarized his findings, in pertinent part, as

   follows:

   
   

   In SUMMARY, Harper’s neurological examination today reveals no specific focal or lateralized findings. She is developing on schedule.

   
   

   A review of medical records confirms history provided by the family. Harper had prominent respiratory failure and went into shock due to meconium aspiration syndrome. She was anuric for the first 2 days of life and treated aggressively for hypertension. Blood pressure was maintained on dopamine and dobutamine and she additionally received vasopressin and corticosteroid therapy. A head ultrasound on June 5 was within normal limits and an MRI scan of the brain performed on June 19, 2017 revealed a right posterior parietal cephalhematoma with a “cystic left basal ganglia.”

   
   

   Today’s evaluation does not reveal either of a substantial mental or motor impairment.

   Harper has done well following meconium aspiration syndrome and I believe that she will continue to develop normally. I am not recommending Harper for inclusion within the NICA program.

   
   

6. Respondent’s Motion for Summary Final Order also relies upon the attached affidavit from Dr. Duchowny, dated February 20, 2018. In his affidavit, he affirms his findings contained in his report and opines, to a reasonable degree of medical probability, that Harper Close has not sustained either a substantial mental or physical impairment, and opines that he believes she will continue to develop normally.

7. A review of the file reveals that no contrary evidence was presented to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their opinions are credited.

   
   

   CONCLUSIONS OF LAW

   
   

8. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla.

   Stat.

   
   

9. 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.

10. 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.

11. NICA has determined that Petitioners do not have a claim that is compensable under the Plan and has filed a Motion for Summary Final Order, requesting that an order be entered finding that the claim is not compensable.

12. In ruling on the motion, 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).

       
       

       § 766.309(1), Fla. Stat.

       
       

13. 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.

    
    

14. The undisputed evidence establishes that there was not an obstetrical event that resulted in loss of oxygen to Harper Close’s brain or spinal cord during labor, delivery, or the immediate post-delivery period. The undisputed evidence further establishes that Harper Close did not sustain a permanent and substantial mental impairment. Thus, Harper Close did not sustain a birth-related neurological injury as defined in section

766.302(2), Florida Statutes, and, therefore, 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 is dismissed with prejudice.

DONE AND ORDERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 8th day of May, 2018.

COPIES FURNISHED:

(via certified mail)

Robert Close Danielle Angelo

3150 Lakeview Boulevard

Port Charlotte, Florida 33948

(Certified Mail Number 7018 0040 0000 9772 4816)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail Number 7018 0040 0000 9772 4823)

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202 Tallahassee, Florida 32301 (eServed)

(Certified Mail Number 7018 0040 0000 9772 4830)

Amie Rice, Investigation Manager

Consumer Services Unit, Department of Health 4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

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: 17-006598N

Orders for Case No: 17-006598N