STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEKEITA D. EATON, INDIVIDUALLY AND ON BEHALF OF JER'QUAN EATON, A MINOR,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION a/k/a NICA,

Case No. 15-0196N

Respondent,

and

KENDALL HEALTHCARE GROUP, LTD., d/b/a KENDALL REGIONAL MEDICAL CENTER,

Intervenor.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unopposed Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on January 22, 2016.

STATEMENT OF THE CASE

On January 9, 2015 and on May 6, 2015, Petitioner, Lekeita D. Eaton, individually and on behalf of Jer’Quan Eaton (Jer’Quan), a minor, filed a Petition Under Protest and an Amended Petition Under Protest 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 and Amended Petition named Scott Jon Dunkin, D.O., as the physician who provided obstetric services for the birth of Jer’Quan on January 15, 2010, at Kendall Regional Medical Center in Miami, Florida.

DOAH served NICA with a copy of the Petition on January 21, 2015. DOAH served Kendall Regional Medical Center with a copy of the Petition on January 17, 2015. On February 2, 2015, DOAH received a return receipt from the United States Postal Service showing that Scott Jon Dunkin, D.O., had been served with a copy of the Petition.

On January 22, 2015, Kendall Healthcare Group, d/b/a Kendall Medical Center, filed a Petition to Intervene, which was granted by Order dated February 3, 2015. As of this date, Scott Jon Dunkin, D.O., has not petitioned to intervene in this proceeding.

On January 22, 2016, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Jer’Quan did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes.

On February 2, 2016, counsel for Petitioner filed a Motion to Withdraw as Counsel of Record, which also requested that Petitioner be granted time in which to find new counsel. The Motion to Withdraw was granted by Order dated February 10, 2016, and an Order Granting Extension of Time to Respond to Motion for Summary Final Order was entered on the same date. The Order afforded Petitioner until May 20, 2016, in which to respond to NICA’s Motion for Summary Final Order. The Order further stated that if no response was filed by that date, it would be assumed that Petitioner does not object to NICA’s Motion for Summary Final Order.

On February 4, 2016, counsel for Respondent filed a Response to Order which stated that he was advised by counsel for Intervenor that Intervenor did not intend to oppose the Motion for Summary Final Order.

As of the date of this Summary Final Order of Dismissal, no response to the Motion has been filed by Petitioner.

FINDINGS OF FACT

1. Jer’Quan Eaton was born on January 15, 2010, at Kendall Regional Medical Center in Miami, Florida.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jer’Quan. In an affidavit dated January 20, 2016, Dr. Willis described his findings in pertinent part as follows:

   
   

   1. It is my opinion that the mother was not in labor prior to delivery. Delivery was by Cesarean section for a non-reassuring FHR pattern. The delivery itself was uncomplicated. Apgar scores were 6/9. There was some respiratory distress after birth, which improved shortly after birth. On DOL 8 the baby began to deteriorate. A thrombosis was identified associated with a UVC. Blood cultures were positive, consistent with sepsis. Anticoagulant therapy was started, but subsequently discontinued after head ultrasound shows bilateral IVH.

      
      

      The mother was not in labor prior to delivery. Cesarean section delivery was stated to be uncomplicated. This would suggest the baby did not suffer oxygen deprivation to the brain during labor or delivery. Apgar scores were 6/9. Although the baby required bag and mask ventilation for a short period of time after birth, the respiratory distress improved shortly after birth. It is unlikely brain injury due to oxygen deprivation occurred during the immediate post delivery period.

      
      

      The baby’s clinical condition deteriorated on DOL 8. This appears to be related to sepsis. The mother did not have a fever prior to delivery, the amniotic fluid did not have a foul smell and placental pathology did not identify infection. This would suggest the baby was not infected at birth. Brain injury did occur by DOL 21 as documented by IVH on head ultrasound. This would be well after the immediate post-delivery period.

      
      

   2. 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. Brain injury did occur at some time after the immediate post-delivery period, related to sepsis and anticoagulation therapy.

      
      

3. A review of the file reveals that there have been no expert opinions filed that are contrary to the opinion of

   Dr. Willis that Jer’Quan’s injuries were not the result of oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period. Dr. Willis’ opinion is credited.

   CONCLUSIONS OF LAW

   
   

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

   §§ 766.301-766.316, Fla. Stat.

   
   

5. 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.

6. 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.

7. NICA has determined that Petitioner does 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.

8. 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.

   
   

9. 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.

   
   

10. The evidence, which is not refuted, established that there was not an obstetrical event that resulted in loss of oxygen or mechanical trauma to Jer’Quan’s brain during labor,

delivery or the immediate post-delivery period. Thus, Jer’Quan 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 Lekeita D. Eaton, individually and on behalf of Jer’Quan Eaton, a minor, is dismissed with prejudice.

DONE AND ORDERED this 26 day of May, 2016, 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 26 day of May, 2016.

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 1200 0002 3330 9694)

Scott Edward Solomon, Esquire Falk, Waas, Hernandez, Cortina,

Solomon and Bonner, P.A.

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 3050 0000 1249 8413)

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7014 3050 0000 1249 8420)

Scott Jon Dunkin, D.O. Suite 654

40th Street 11760 Southwest Miami, Florida 33175

(Certified Mail No. 7014 3050 0000 1249 8437)

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: 15-000196N

Orders for Case No: 15-000196N