STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATHIS LEWIS AND SHARNAY DIXON,

on behalf of and as parents and natural guardians of JA'QUAYLIN

K. LEWIS, a minor,

vs.

Petitioners,

Case No. 14-4520N

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 Association (NICA), on June 2, 2015.

STATEMENT OF THE CASE

On September 29, 2014, Petitioners, Mathis Lewis and Sharnay Dixon, on behalf of and as parents and natural guardians of Ja’quaylin K. Lewis (Ja’quaylin), a minor, filed an Amended

Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition), with the Division of Administrative Hearings (DOAH). The Petition alleged that Ja’quaylin suffered brain damage as a result of a birth-related neurological injury.

The Petition named Antoine Chidiac, a/k/a Anthony A. Chidiac, M.D., as the physician providing obstetric services at the birth of Ja’quaylin at Holy Cross Hospital in Ft. Lauderdale, Florida.

DOAH served NICA on October 1, 2014. DOAH served Holy Cross Hospital with a copy of the Petition on October 3, 2014, and Adib Antoine Chidiac, M.D., with a copy of the Petition on October 6,

2014.

As of this date, neither Dr. Chidiac nor Holy Cross Hospital

has petitioned to intervene in this proceeding.

On May 15, 2015, NICA filed a response to the Petition, giving notice that the injury does not "meet the definition of a 'birth-related neurological injury' as defined in section 766.302(2), Florida Statutes, which specifically requires that the injury render 'the infant permanently and substantially mentally and physically impaired.'" NICA requested that a hearing be scheduled to resolve whether the claim was compensable.

A final hearing was scheduled for October 7, 2015. On June 2, 2015, NICA filed a Motion for Summary Final Order. The

motion was served by electronic mail on June 2, 2015. No response to the Motion was filed by Petitioners.

A Summary Final Order of Dismissal was issued on July 14, 2015, dismissing Petitioners’ Petition for Benefits. On July 14, 2015, Petitioners filed a Motion to Vacate Summary Final Order of Dismissal which informed that counsel for Petitioners did not

receive and were unaware of the filing of NICA’s Motion for Summary Final Order, and requested an opportunity to respond to NICA’s Motion.

On July 15, 2015, an Order Vacating Summary Final Order of Dismissal and Re-opening File was entered, which vacated the Summary Final Order of Dismissal and granted Petitioner’s request to respond to NICA’s Motion on or before July 30, 2015.

On July 29, 2015, a Motion to Withdraw as Counsel for Petitioners was filed. The Motion to Withdraw was granted by Order dated August 12, 2015. No response was filed by Petitioners to either the Motion for Summary Final Order or Order Vacating Summary Final Order, and no attorney had filed a notice of appearance on behalf of Petitioners.

On August 28, 2015, an Order to Show Cause was entered which allowed Petitioners until September 14, 2015, to inform the undersigned as to why the Summary Final Order of Dismissal should not be reentered and the case closed. To date, no response has been filed to the Order to Show Cause.

FINDINGS OF FACT

1. Ja’quaylin K. Lewis was born on September 29, 2009, at Holy Cross Hospital in Ft. Lauderdale, Florida. Ja’quaylin weighed in excess of 2,500 grams at birth.

2. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Ja’quaylin’s medical records. In a medical report dated

   
   

   April 24, 2015, Dr. Willis made the following findings and expressed the following opinion:

   In summary, there was an episode of FHR tachycardia during labor, but overally [sic] the FHR tracing during labor did not suggest any significant fetal distress. The newborn was not severely depressed at birth (Apgar 7/8), but did have respiratory distress that required oxygen. Hypovolemin and intracranial hemorrhage were suspected at time of NICU admission. CT scan of the head within hours of birth identified bilateral acute IVH. I can’t identify the exact time the IVH occurred. However, the IVH was identified by CT scan within hours of birth and must have occurred at some time during labor, delivery or the immediate post delivery period.

   
   

   There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during [sic] at some time during labor, delivery, or the immediate post delivery period. The oxygen deprivation resulted in bilateral IVH and brain injury. I am not able to comment about the severity of the brain injury.

   
   

3. Dr. Willis affirmed his opinion in an affidavit dated May 28, 2015.

4. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery, or the immediate post-delivery period which resulted in brain injury is credited.

5. Respondent retained Michael Duchowny, M.D.

   
   

   (Dr. Duchowny), a pediatric neurologist, to evaluate Ja’quaylin. Dr. Duchowny reviewed Ja’quaylin’s medical records and performed

   
   

   an independent medical examination on her on April 8, 2015. Dr. Duchowny made the following findings and summarized his evaluation as follows:

   NEUROLOGIC EXAMINATION reveals a quiet and attentive child sitting in her mother’s lap who does not communicate well. Ja’Quaylin speaks in single words which are often repetitive. I did not hear her put 2 words together. She does not make emotional responses to social introductions but does fondle a stuffed animal and enjoyed playing [sic] it. There was no drooling. Her attention span appeared appropriate for age and there are no behavioral abnormalities.

   
   

   * * *

   
   

   Motor examination reveals symmetric muscle strength, bulk and tone in the upper extremities. There are no adventitious movements and no focal weakness or atrophy. Full range of motion is also noted in the lower extremities and I was able to dorsiflex both ankles to several degrees above neutrality. Similarly, there is no focal weakness or atrophy in the lower extremities.

   
   

   Coordination and gait: Ja’Quaylin walks in a stable fashion and has bilateral heel strikes. She turns reasonably crisply without ataxia or lateralized instability.

   She could perform finger-to-nose maneuvers without difficulty.

   
   

   * * *

   
   

   In SUMMARY, Ja’Quaylin’s neurologic examination reveals evidence of a substantial mental impairment with a cognitive level approximating 18-24 months in development.

   In contrast, motor development has progressed satisfactorily and there is no evidence of a substantial motor impairment.

   
   

   I had an opportunity to review medical records which detailed Ja’Quaylin’s birth at Holy Cross Hospital. She was born with Apgar scores of 7 and 8 at 1 & 5 minutes and had atrial blood gases that were near-normal.

   Her pulse oximetry levels were between 99 and

   100. She was transferred to the Neonatal Intensive Care Unit (NICU) and given supplemental oxygen. There was no evidence of neonatal encephalopathy or multi-organ failure. She evidenced mild hypovolemia with normal liver and renal function tests. Suspected sepsis was treated prophylactically. A head CT scan apparently revealed acute bilateral intraventricular hemorrhage and a small subdural and subarchnoid hemorrhage. The hemorrhagic regions have completely resorbed and follow up MR imaging is unremarkable.

   
   

   Ja’Quaylin thus has a mild spastic diplegia which has responded well to a combination of Achilles heel cord lengthening procedures, physical and occupational therapy. Today’s physical examination and record review did not document a substantial motor impairment nor is there evidence that she sustained neurological injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period. For these reasons, I am not recommending Ja’Quaylin for inclusion within the NICA program.

   
   

6. Dr. Duchowny’s opinion that Ja’quaylin does not have a substantial, permanent motor impairment is credited.

7. Dr. Duchowny’s opinion that Ja’quaylin’s injury is inconsistent with an injury to her brain or spinal cord due to oxygen deprivation or mechanical injury during labor, delivery or the immediate post-delivery period is at odds with Dr. Willis’ opinion regarding the same issue.

   
   

8. However, 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.

9. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Duchowny that Ja’quaylin does not have a substantial motor impairment. While Ja’quaylin has a mild spastic diplegia, these deficits do not render her permanently and substantially physically impaired.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

    §§ 766.301-766.316, Fla. Stat. (2014).

    
    

11. 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).

    
    

12. 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. The Florida Birth-Related Neurological Injury Compensation Association, 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.

    
    

13. 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.

    
    

14. In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon all 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. 766.302(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.

       
       

15. In the instant case, Petitioners filed a claim alleging that Ja’quaylin 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 Petitioners.

    § 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health &

    
    

    Rehab. Servs., 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.").

16. While Dr. Willis established that there was an apparent obstetrical event that resulted in loss of oxygen to Ja’quaylin’s brain during labor, delivery and continuing into the post-delivery period that resulted in brain injury, the remaining issue to be determined is whether the injury resulted in a permanent and substantial mental impairment and a permanent and substantial physical impairment, inasmuch as both are required to establish compensability. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Div. of Admin. Hearings, 686 So. 2d 1349 (Fla. 1997).

17. The evidence, which is not refuted, established that Ja’quaylin does not have a permanent and substantial physical impairment. Thus, Ja’quaylin is not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

That the Petition filed by Mathis Lewis and Sharnay Dixon, on behalf of and as parents of and natural guardians of Ja’quaylin Lewis, is dismissed with prejudice.

DONE AND ORDERED this 1st day of October, 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 1st day of October, 2015.

COPIES FURNISHED:

(via certified mail)

Sharnay Dixon Mathis Lewis

1050 Southwest 5th Terrace Deerfield Beach, Florida 33441

(Certified Mail No. 7014 2120 0000 0358 9969)

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 0000 0356 8773)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

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 0000 0358 9938)

Holy Cross Hospital Attention: Risk Management 4725 North Federal Highway

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: 14-004520N

Orders for Case No: 14-004520N