STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONTA AND KENIA WILSON, on

behalf of and as parents and natural guardians of DONDRAYA WILSON, a minor,

vs.

Petitioners,

Case No. 14-4570N

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 June 15, 2015.

STATEMENT OF THE CASE

On September 16, 2014, Petitioners, Donta and Kenia Wilson, on behalf of and as parents and natural guardians of Dondraya Wilson (Dondraya), 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). On September 30,

2014, Petitioners filed a letter with the Clerk’s Office of DOAH referencing Dr. William Peterson as the physician providing obstetrical services at the birth of Dondraya on December 11, 2011, at Broward Health Medical Center (Broward Health) in Fort Lauderdale, Florida.

DOAH served NICA with a copy of the Petition on October 7, 2014. DOAH served a copy of the Petition on William Peterson, M.D., and Broward Health on November 17, 2014.

As of the date of this Summary Final Order of Dismissal, neither Broward Health nor Dr. Peterson filed a petition to intervene into this proceeding.

On June 15, 2015, NICA filed a Motion for Summary Final Order, asserting that Dondraya did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. The motion was served by United States mail on June 15, 2015.

An Order to Show Cause was entered on June 30, 2015, advising Petitioners to show cause in writing no later than July 17, 2015, why Respondent’s Motion for Summary Final Order should not be granted. To date, no response has been filed.

FINDINGS OF FACT

1. Dondraya Wilson was born on December 11, 2011, at Broward Health Medical Center located in Ft. Lauderdale, Florida. Dondraya weighed 3,350 grams at birth.

   
   

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Dondraya, to determine whether an injury occurred in a hospital due to oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis described his findings in pertinent part as follows in an affidavit dated June 2, 2015:

   1. I have reviewed the medical records for the above individual, pages 1 through 5357. The mother, Kenia Wilson, was a 29 year old G7 P3 with a history of macrosomia and shoulder dystocia with her prior pregnancy.

      
      

   2. The mother was admitted at 41 weeks for delivery due to post-dates and suspected fetal macrosomia. Ultrasound on the day of delivery gave an estimated fetal weight of 8 lbs. 6 ozs. Her cervix was long and closed. She was not in labor. The decision was made to delivery (sic) by Cesarean section rather than induction of labor due to prior history of shoulder dystocia.

      
      

   3. Primary Cesarean section delivery was done with a birth weight of 3,350 grams or 7 lbs 6 ozs. Meconium stained amniotic fluid was present at time of delivery. The baby was not depressed at birth. Apgar scores were 8/9. Umbilical cord blood gas was normal with a pH of 7.29 and a base excess of only -4.

      
      

   4. The baby was taken to the newborn nursery without apparent problems. Within 24-hours of birth, temperature instability and poor feeding were noted and Neonatology consultation requested. The baby was subsequently transferred to Broward General Hospital on DOL 2.

      
      

   5. The baby had a complicated and very long newborn hospital course. The initial problems were respiratory distress, poor muscle tone and poor feeding. Respiratory distress was managed with hood and nasal oxygen. Poor muscle tone was a prominent feature. Spinal fluid was obtained for culture. Cultures were no-growth. Feeding tube was surgically placed at about 3 months of age due to poor oral feeding.

      
      

   6. Seizure activity developed at almost three months of age. EEG was abnormal. Two MRI’s of the brain were done and both were normal.

      
      

   7. Genetic and metabolic evaluation was done. Chromosome analysis was normal, but microarray identified a deletion in chromosome 16.

      
      

   8. In summary, the mother was not in labor prior to delivery. Delivery was by Primary Cesarean section. The newborn was not depressed at birth. Apgar scores were 8/9. Umbilical cord blood gas was normal with a pH of 7.29. The baby went from delivery room to the normal nursery. There were no findings to suggest birth hypoxia. Within the first day of life, neurologic problems were suspected. MRI’s of the brain were normal. Genetic evaluation identified a deletion of chromosome 16.

      
      

   9. 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 child was identified with a chromosome abnormality, which most likely explains the neurologic problems.

      
      

3. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Dondraya and to review her medical records. Dr. Duchowny examined Dondraya on March 18,

   
   

   2015, and opined in pertinent part as follows in his affidavit dated June 4, 2015:

   
   

   1. In summary, Dondraya’s neurological examination is consistent with severe global neurodevelopment delay with a maturation level of approximating ages 1-2 months. Dondraya evidences hypotonic quadriparesis with microcephaly and a cortical visual impairment. She additionally has a longstanding history of medically resistant seizures, oromotor dysfunction, pseudobulbar palsy and a chronic indwelling gastrotomy tube. There is incidental reactive airway disease. Dondraya therefore has both a substantial mental and motor impairment.

      
      

   2. Review of medical records reveals that Dondraya’s neurological problems are related to her chromosome disorder and not due to either mechanical injury or oxygen deprivation during labor, delivery or the immediate postnatal period. Dondraya was born at 41 weeks gestation with a birth weight of 7 pounds and had a 1 & 5 minute Apgar scores of 8 & 9.

      
      

   3. She did not require intubation at birth and there was no evidence of multiorgan impairment. Furthermore, two MRI scans of the brain performed at ages 5 days and 2 months are within normal limits.

      
      

   4. I therefore believe that Dondraya’s neurological impairment was acquired prenatally and therefore do not recommend her for compensation within the NICA program.

   
   

4. 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. Willis 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. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Dondraya has both a substantial mental and motor impairment, her neurological impairments are related to her chromosome disorder and not due to either mechanical injury or oxygen deprivation during labor, delivery or the immediate postnatal period, but were acquired prenatally. Dr. Duchowny’s

   opinion 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 Dondraya did not sustain an injury to the brain or spinal cord caused by oxygen deprivation occurring during labor, delivery, or the immediate post-delivery period. Therefore, Dondraya is not eligible for benefits under the Plan.

CONCLUSION

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

1. The Petition filed by Donta and Kenia Wilson, on behalf of and as parents and natural guardians of Dondraya Wilson, is dismissed with prejudice.

2. The final hearing scheduled for August 26, 2015, is cancelled.

DONE AND ORDERED this 22nd day of July, 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 22nd day of July, 2015.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202 Post Office Box 551

Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7014 2120 0003 1047 5726)

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 5733)

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 5740)

Broward Health Medical Center Attention: Risk Management 1600 South Andrews Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 7014 2120 0003 1047 5757)

William Peterson, M.D.

1600 South Andrews Avenue, Suite 323 Fort Lauderdale, Florida 33316

(Certified Mail No. 7014 2120 0003 1047 5764)

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: 14-004570N

Orders for Case No: 14-004570N