STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARA GHERMAN, on behalf of and ) as parent and natural guardian ) of AURORA JONES, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH- RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 12-3495N

)

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

April 24, 2013.

STATEMENT OF THE CASE

On October 24, 2012, Petitioner, Kara Gherman as parent and natural guardian of Aurora Jones (Aurora), 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 Bhupendra [sic] M. Patel, M.D., as the physician providing obstetric services at the birth of Aurora at Osceola Regional Medical Center in Kissimmee, Florida.

DOAH served NICA with a copy of the Petition on October 29, 2012. DOAH served Osceola Regional Medical Center with a copy of the Petition on October 30, 2012. DOAH received a return receipt from the United States Postal Service on October 31, 2012, showing that Dr. Patel had been served with a copy of the Petition.

On April 24, 2013, NICA filed a Motion for Summary Final Order, asserting that Aurora did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. NICA represented in the motion that Petitioner had no objection to the granting of the motion. As of the date of this Summary Final Order of Dismissal, neither Dr. Patel nor Osceola Regional Medical Center has petitioned to intervene in this proceeding.

FINDINGS OF FACT

1. Aurora Jones was born on September 2, 2010, at Osceola Regional Medical Center in Kissimmee, Florida. Aurora weighed 7 pounds and six ounces (3,345 grams) at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Aurora. In a medical report dated December 4, 2012, Dr. Willis opined:

   
   

   In summary, the mother was admitted in labor at 41 weeks. Vaginal delivery was accomplished without apparent difficulty.

   The baby was not depressed at birth. However, excessive oral sections were noted at time of delivery. A cranial nerve dysfunction was subsequently diagnosed, which resulted in poor swallowing and excess oral sections.

   
   

   There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period.

   
   

3. NICA engaged Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the medical records of Aurora, to conduct an examination of Aurora, and to render an opinion whether a birth-related neurological injury occurred. In a report dated March 27, 2013, Dr. Duchowny opined:

   The combined evidence from the record review and physical examination do not suggest that Aurora has a substantial mental impairment. Furthermore, there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the postdelivery period. Rather, it is more likely that Aurora has primary neuromuscular disorder, either congenital myopathy or dystrophy or a genetic disorder producing prominent motor involvement. She has never had a muscle biopsy which might be useful in ascertaining a diagnosis.

   
   

   I, therefore, do not recommend Aurora for inclusion in the NICA program.

   
   

4. A review of the file does not show any contrary opinions, and Petitioner has no objection to the issuance of a

   
   

   summary final order finding that the injury is not compensable under the Plan. The opinions of Dr. Willis and Dr. Duchowny that Aurora did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period are credited. Dr. Duchowny's opinion that Aurora does not have a permanent and substantial mental impairment is 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 Aurora 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 resuscitation in the immediate postdelivery period in a hospital and that Aurora does not have a permanent and substantial mental impairment. Therefore, Aurora 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 Kara Gherman, on behalf of and as parent and natural guardian of Aurora Jones, is dismissed with prejudice.

DONE AND ORDERED this 29th day of April, 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 29th day of April, 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

(Certified Mail No. 7012 1010 0001 8356 1518)

John W. Dill, Esquire Morgan and Morgan, P.A. Suite 1600

20 North Orange Avenue Orlando, Florida 32802-4979

(Certified Mail No. 7012 1010 0001 8356 1525)

Jeffrey P. Brock, Esquire Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900 Post Office Box 15200

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 1251 9828)

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: 12-003495N

Orders for Case No: 12-003495N