STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLLE FENELON AND DARNLEY

MAYARD, on behalf of and as parents and natural guardians of DANIEL JOSHUA MAYARD, a

minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 12-2858N

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on March 12, 2013.

STATEMENT OF THE CASE

On August 29, 2012, Petitioners, Carolle Fenelon and Darnley Mayard, on behalf of and as parents and natural guardians of Daniel Joshua Mayard (Daniel), a minor, filed a Petition for Determination as to Applicability of Florida Birth-Related Neurological Injury Compensation Plan (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 B. Mitchell Grabois, M.D., as the physician providing obstetric services at the birth of Daniel at Joe DiMaggio Children's Hospital Foundation, Inc., located in Hollywood, Florida. The Petition alleges that Aventura OB/GYN Associates, LLC, performed obstetrical services to Ms. Fenelon through its physicians and licensed health care providers.

DOAH served NICA with a copy of the Petition on September 6, 2012. DOAH served a copy of the Petition on Joe DiMaggio Children's Hospital on February 11, 2013. Dr. Grabois was served a copy of the Petition on February 12, 2013. As of the date of this Summary Final Order of Dismissal, neither Dr. Grabois nor Joe DiMaggio Children's Hospital has petitioned to intervene in this proceeding.

On March 12, 2013, NICA filed a Motion for Summary Final Order, asserting that Daniel did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. A response to the motion was due to be filed on March 19, 2013. No response was filed. On March 26, 2013, an Order was entered requiring Petitioners to

show cause on or before April 8, 2013, why the motion should not be granted. April 3, 2013, Petitioners filed a Motion for Extension of Time in Which to Respond to Motion for Summary Final

Order requesting that the time for filing a response be extended to May 8, 2013. By Order dated April 3, 2013, the time for filing a response was extended to May 8, 2013. As of the date of this Summary Final Order of Dismissal, Petitioners have filed no response to the motion for summary final order.

FINDINGS OF FACT

1. Daniel Joshua Mayard was born on November 18, 2010, at Joe DiMaggio Children's Hospital in Hollywood, Florida. Daniel weighed 2,585 grams at birth.

2. NICA retained Raymond J. Fernandez, M.D., as its medical expert in pediatric neurology. Dr. Fernandez examined Daniel and reviewed his medical records. In an affidavit dated March 1, 2013, Dr. Fernandez opined as follows:

   There is clear evidence of substantial mental and motor impairment, but etiology has not yet been determined. There is no evidence in the record for oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post delivery period that explains Daniel's findings. The one minute Apgar score of 2, followed by improved scores of 7 and 8 at 5 and 10 minutes, respectfully, without the need for intubation or ongoing resuscitation indicates stability after an initial brief period of postnasal neurological depression. This is not consistent with an acute anoxic or mechanical insult that explains Daniel's severe mental and motor impairment. Furthermore, there is no evidence in the NICU record for acute multi-organ injury and brain MRI on day three of life was abnormal, but not due to acute hypoxic, ischemic or mechanical injury. The MRI finding on day three is indicative of an

   
   

   abnormality of brain development, cause unknown, that occurred prior to labor and delivery.

   
   

3. NICA retained Donald Willis, M.D., as an expert in maternal-fetal medicine to review the medical records of Daniel and his mother. In an affidavit dated February 27, 2013,

   Dr. Willis opined:

   
   

   It is my opinion that the baby was born by spontaneous vaginal birth and was depressed at birth with a one minute Apgar of 2.

   Resuscitation with only bag and mask ventilation for one minute and stimulation improved the Apgar score to 7 at five minutes and 9 at ten minutes. Significant oxygen deprivation during labor and birth would be unlikely with normal Apgar scores at five and ten minutes. MRI on DOL 3 did not show any acute features suggestive of hypoxic injury. The MRI finding of reduced brain volume suggests an abnormality of brain development that most likely occurred during fetal development.

   
   

   As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor delivery or the immediate post delivery period. The fetal brain injury and other dysmorphic features are most likely related to abnormalities of fetal development and not oxygen deprivation during birth.

   
   

4. A review of the file does not show any opinions contrary to the opinions of Dr. Fernandez and Dr. Willis that Daniel did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period and that Daniel does not have a

   
   

   substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma are credited.

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

6. 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.

7. 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.

8. 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.

   
   

9. 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.

      
      

10. 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.

    
    

11. The evidence, which is not refuted, established that Daniel did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or during resuscitation in the immediate post-delivery period, which resulted in substantial and permanent mental and physical impairments. Therefore, Daniel 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 Carolle Fenelon and Daniel Mayard, on behalf of and as parents and natural guardians of Daniel Joshua Mayard, is dismissed with prejudice.

DONE AND ORDERED this 17th day of May, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 17th day of May, 2013.

COPIES FURNISHED:

(Via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8356 9873)

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: 12-002858N

Orders for Case No: 12-002858N