STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTORIA D. MOHR AND DANIEL J.

FOSTER, on behalf of and as parents and natural guardians of KIREI ARIANNA FOSTER, a minor,

vs.

Petitioners,

Case No. 14-3465N

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 December 17, 2014.

STATEMENT OF THE CASE

On July 23, 2014, Petitioners, Victoria D. Mohr and Daniel J. Foster, on behalf of and as parents and natural guardians of Kirei Arianna Foster (Kirei), 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 Eric Edelenbos, D.O., as the physician who provided obstetric services for the birth of Kirei. The Petition stated that Kirei was born at Orange Park Medical Center in Orange Park, Florida.

DOAH served NICA with a copy of the Petition on July 25, 2014. DOAH served Eric Edelenbos, D.O., and Orange Park Medical Center a copy of the Petition on July 28, 2014.

As of the date of the Summary Final Order of Dismissal, neither Dr. Edelenbos nor Orange Park Medical Center has petitioned to intervene in this proceeding.

On December 17, 2014, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Kirei did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes. On December 30, 2014, an Order to Show Cause was entered, requiring Petitioners to show cause why the motion should be granted. As of the date of this Summary Final Order of Dismissal, no response to the Motion for Summary Final Order has been filed.

FINDINGS OF FACT

1. Kirei Arianna Foster was born on August 29, 2007, at Orange Park Medical Center in Orange Park, Florida.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Kirei. In a report dated

   
   

   August 22, 2014, Dr. Willis described his findings in pertinent part as follows:

   Cesarean section delivery was done with a birth weight of 3,162 grams. The baby was not depressed. Apgar scores were 9/10.

   Umbilical cord blood gas was normal with a pH of 7.22 and a base excess of -6.

   
   

   * * *

   
   

   The mother apparently had fever during labor. The baby was treated with antibiotics for 48 hours. Blood cultures were no growth and antibiotics discontinued. Newborn hospital course was uncomplicated. The baby did not have respiratory distress or seizures.

   
   

   Neurology evaluation was done at 6 years of age due to lack of attention at school.

   Neurology exam was normal. MRI and EEG were ordered for further evaluation and both were normal. The MRI did not find any brain injury.

   
   

   In summary, Cesarean section delivery was done for excessive uterine contractions during pitocin induction of labor. Baby was not depressed at birth. Apgar scores were 9/10 and blood cord gas did not suggest hypoxia or acidosis. The baby had an uncomplicated newborn course. MRI at 6 years of age was normal.

   
   

   The excessive uterine contractions did not result in newborn depression and therefore did not adversely affect the baby.

   
   

   Babies with birth related hypoxic brain injury would be expected to have newborn depression with low Apgar scores and abnormal cord blood gas studies. Newborn hospital course would be complicated by multi-system organ failure and possible seizures. MRI would show evidence of brain injury. This child did not have any of the findings that

   
   

   are normally seen with birth related injuries.

   
   

   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.

   
   

3. In an affidavit dated December 17, 2014, Dr. Willis reaffirmed his opinion that there was not an injury to the baby’s brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital for the claim to qualify for compensation under sections 766.301 through 766.316, Florida Statutes.

4. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that Kirei’s injuries were not the result of oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis’ opinion is credited.

5. The Petition was filed on July 23, 2014, which is more than five years after Kirei’s birth.

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

7. 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.

8. 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.

9. 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.

10. In ruling on the motion, the administrative law judge must make the following determination based upon the available

    evidence:

    
    

    (a) 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.

    
    

11. 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.

    
    

12. The evidence, which is not refuted, established that there was not an obstetrical event that resulted in loss of oxygen or mechanical trauma to Kirei’s brain during labor, delivery or resuscitation in the immediate post-delivery period. Thus, Kirei is not eligible for benefits under the Plan.

13. Moreover, the Petition for Benefits was filed more than five years after the birth of Kirei. This is beyond the five- year statute of limitations set forth in section 766.313, and is, therefore, barred.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Victoria D. Mohr and Daniel J. Foster, on behalf of and as parents of

Kirei Arianna Foster, a minor, is dismissed with prejudice.

DONE AND ORDERED this 9th day of February, 2015, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 9th day of February, 2015.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7014 2120 0003 1047 9595)

Daniel J. Foster Victoria D. Mohr

21 Hilldale Drive

Ephrata, Pennsylvania 17522

(Certified Mail No. 7014 2120 0003 1047 9601)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified Mail No. 7014 2120 0003 1047 9618)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1047 9625)

Eric John Edelenbos, D.O.

1680 Eagle Harbor Parkway, Suite A Orange Park, Florida 32003

(Certified Mail No. 7014 2120 0003 1047 9632)

Orange Park Medical Center Attention: Risk Management 2001 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7014 2120 0003 1047 9649)

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: 14-003465N

Orders for Case No: 14-003465N