STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SARAH W. KITCHEN (MOTHER) and STEVEN KITCHEN (FATHER), on
behalf of and as natural guardians of MADELINE ELIZABETH KITCHEN, a minor,
vs.
Petitioners,
Case No. 15-1100N
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
Respondent,
and
SHARONN JONES, CNM, ARNP; AND NORTH FLORIDA OB/GYN, LLC,
Intervenors.
/
FINAL ORDER
Pursuant to an Order dated February 12, 2016, the parties were granted leave to submit a stipulated factual record and written argument in lieu of a contested hearing in this case. The stipulated record was filed on April 8, 2016. The parties were granted 15 days from the date the stipulated record was
filed to submit their proposed final orders or written arguments. The parties timely filed their proposed final order or written
memorandum in support on April 19, 2016, which have been duly considered in the preparation of this Final Order.
APPEARANCES
For Petitioners: Rodney Stuart Margol, Esquire
Margol & Margol, P.A. 2029 North 3rd Street
Jacksonville Beach, Florida 32250
For Respondent: M. Mark Bajalia, Esquire
Bajalia Law
11512 Lake Mead Avenue, Suite 301
Jacksonville, Florida 32256
For Intervenors Sharonn Jones, CNM, ARNP; and North Florida OB/GYN, LLC:
Richard E. Ramsey, Esquire Wicker, Smith, O'Hara,
McCoy and Ford, P.A.
50 North Laura Street, Suite 2700 Jacksonville, Florida 32202
STATEMENT OF THE ISSUE
The issue in this case is whether Madeline Elizabeth Kitchen suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
PRELIMINARY STATEMENT
On February 24, 2015, Sarah W. Kitchen and Steven Kitchen, on behalf of and as natural guardians of Madeline Elizabeth Kitchen (Madeline), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition), with the Division of Administrative Hearings (DOAH). The Petition alleged
that Madeline suffered a birth-related neurological brain and/or spinal cord injury.
The Petition named Robert Roland Powers, D.O.;
Eric Edelenbos, D.O.; and R. Sharonn Jones, CNM, ARNP, as the medical providers providing obstetric services, and alleged that Madeline was born at Orange Park Medical Center, which is located in Orange Park, Florida, on March 9, 2013.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) on March 4, 2015. DOAH served Robert Roland Powers, D.O.; Eric J. Edelenbos, D.O.; and
R. Sharonn Jones, CNM, ARNP, with a copy of the Petition on March 5, 2015.
On March 12, 2015, Orange Park Medical Center filed a Petition to Intervene, which was granted by Order dated March 20, 2015. On March 23, 2015, R. Sharonn Jones, CNM, ARNP; and North Florida OB/GYN, LLC, filed a Petition for Leave to Intervene, which was granted by Order dated March 31, 2015.
On August 19, 2015, NICA filed a response to the Petition, giving notice that the alleged injury did not "meet the definition of a 'birth-related neurological injury' as defined in section 766.302(2), Florida Statutes, which requires that 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 post delivery period, and 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 March 3, 2016. On February 11, 2016, the parties filed a Joint Motion to Submit Stipulated Factual Record in Lieu of a Contested Hearing. On February 12, 2016, an Order was entered granting the parties leave to submit a stipulated record in lieu of a live administrative hearing.
On March 25, 2016, Orange Park Medical Center filed a Notice of Withdrawal, withdrawing as an Intervenor in this case.
On April 8, 2016, the parties filed a Stipulated Record, consisting of printed copies of Joint Exhibits A through AA. Included in these exhibits is the deposition testimony of three witnesses: Sarah Kitchen, Mary Helen Axman, and Dennis Martin Axman, Sr.
On April 18, 2016, Petitioners timely filed their Memorandum in Support of Benefits. On April 19, 2016, Respondent timely filed its Proposed Final Order. On April 19, 2016, Intervenors filed their Notice of Joinder in Petitioners’ Memorandum in Support. These post-hearing submissions have been carefully considered in the drafting of this Final Order.
FINDINGS OF FACT
Sarah W. Kitchen and Steven Kitchen are the natural parents of Madeline Elizabeth Kitchen (Madeline), a minor.
Madeline was born a live infant at Orange Park Medical Center, a licensed hospital in Orange Park, Florida, on March 9, 2013.
Obstetrical services at the time of Madeline’s birth were provided by Sharonn Jones, CNM, ARNP; and her employer, North Florida OB/GYN, LLC. At all material times, Nurse Jones and North Florida OB/GYN were participants in the Florida Birth-Related Neurological Compensation Plan. NICA’s notice is not at issue as to Nurse Jones or North Florida OB/GYN in this proceeding.
Madeline weighed in excess of 2,500 grams at birth.
Petitioners and Intervenors contend that Madeline suffered a birth-related neurological injury, and Petitioners seek compensation under the NICA Plan. Petitioners and Intervenors take the position that Madeline’s brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered Madeline permanently and substantially impaired. Respondent contends that Madeline’s injury does not meet the definition of a birth-related neurological injury as defined in section 766.302(2), Florida Statutes.
Petitioner Sarah Kitchen was admitted to Orange Park Medical Center on March 9, 2013. Her membranes were artificially ruptured at 12:48 in the afternoon, and her amniotic fluid was clear. There were some fetal heart decelerations during labor. After Mrs. Kitchen pushed for over an hour, vacuum extraction with two pulls was used to assist vaginal delivery. There was meconium stained amniotic fluid requiring intubation and suctioning before first cry.
Madeline’s Apgar scores were 4 at one minute, 9 at 5 minutes and 9 at 10 minutes.
The cord blood pH was 7.155.
Madeline was in the transitional nursery for a period of time but was not admitted to the NICU. She then spent two days in the regular nursery prior to being discharged home. Other than concerns about Madeline’s ability to nurse, there appear to have been no other concerns at discharge.
When Madeline was about seven months old, Mrs. Kitchen began to have concerns about Madeline’s progress and discussed her concerns with Madeline’s pediatrician. In July 2014, Madeline was seen by Dr. Harry Abrams, a pediatric neurologist with Nemours Children’s Clinic in Jacksonville. He concurred with the parents’ concerns of motor, as well as language delays. Dr. Abrams recommended an MRI of the brain, referral to Nemours Orthopedics and Nemours GI, as well as the Early Steps Program anticipating
the need for speech and physical therapy. He also noted mild microcephaly.
Madeline had an MRI of the brain in August 2014, when she was approximately 16 months of age. The MRI revealed “bilateral periventricular hyper intense signal areas with cystic changes with old hemorrhagic products along with the lateral ventricles lining with a thin corpus callosum consistent with periventricular leukomalacia.”
Following the results of the MRI, Madeline had a follow- up appointment with Dr. Abrams who reviewed the results with Madeline’s parents and “discussed in detail the usage of the term of ‘cerebral palsy.’” Dr. Abrams’ notes reflect that the importance of early intervention was discussed and noted that the evaluation for the Early Steps Program had already begun.
Dr. Abrams again saw Madeline at an appointment in December 2014. His notes reflect that the mother reported ongoing developmental progress, but had expressed frustration at Madeline’s therapies being limited to physical therapy once per month and speech therapy once per week, with no occupational therapy. Dr. Abrams recommended more frequent therapies.
At an appointment in June 2015, Dr. Abrams’ notes describe Madeline as a “2-year-old child with mild cerebral palsy who is making good progress.”
At the time of Mrs. Kitchen’s deposition on July 1, 2015, Madeline was receiving physical therapy (once a week for 30 minutes), speech therapy for eating (once a week for 60 minutes), and occupational therapy consults on an irregular basis. She is able to feed herself, mostly with her fingers. Madeline did not walk until 18 months of age, but is now walking without having to hold on to anything. Her left leg is the “weaker” leg and is slightly shorter than her right leg. Her left foot turns in. There have been discussions regarding the possibility of a brace for her left leg if it does not correct itself. Her speech is limited to a few words.
NICA retained Donald C. Willis, M.D., to review Madeline’s medical records. Dr. Willis made the following findings and expressed the following opinion in a report dated April 20, 2015:
I have reviewed the medical records for the above individual. The mother, Sarah Kitchen was a 28 year old G1. Her AFP screen was positive for Down syndrome. She was evaluated by Maternal-Fetal Medicine. Amniocentesis was declined. The abnormal AFP was not a factor in the outcome of this case.
The mother was seen for decreased fetal movement three days before delivery.
Biophysical profile (BPP) was 8/8 with normal amniotic fluid volume (AFI of 10 cms).
Findings suggested the fetus was not in distress. Non-stress test (NST) was done the following day and was reactive, again suggesting the fetus was not in distress.
The mother presented to the hospital in labor about two days after the above NST. Her cervix was dilated 4 cms. Amniotic fluid was reported to be clear. Fetal heart rate (FHR) tracing during labor was not available for review, but labor and delivery record reported “meconium stained fluid and decelerations” as complications.
Vacuum extractor with two pulls was used to assist vaginal delivery. Birth weight was 3,538 grams (7 lbs 12 oz’s). Apgar scores were 4/9/9. The newborn was intubated for meconium and suctioned. Arterial cord blood gas was within normal limits with a pH of
7.155 and a base excess of -5.
Newborn physical gives an overall assessment of normal exam. Newborn hospital course was uneventful. The baby was discharged home on two days after birth.
The child was subsequently followed for developmental delay. MRI on 08/04/2014 (about
16 months of age) showed periventricular leukomalacia.
In summary, there was not significant oxygen deprivation during labor and delivery and indicated by normal blood gas and normal Apgar score at 5 minutes. The newborn hospital course was uncomplicated.
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.
In a follow-up report dated August 13, 2015, Dr. Willis reaffirmed his opinion:
I have reviewed the fetal heart rate (FHR) tracing for the above individual. The base line FHR is normal at about 140 bpm on admission and heart rate variability is
normal. The FHR monitor tracing does not suggest fetal distress during labor.
The normal appearing FHR tracing would be in agreement with my previous medical opinion that the baby did not suffer oxygen deprivation during labor.
Dr. Willis’ 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 is credited.
Respondent retained Laufey Y. Sigurdardottir, M.D., to evaluate Madeline. Dr. Sigurdardottir is a pediatric neurologist with the Division of Neurology of Nemours. Dr. Sigurdardottir reviewed Madeline’s medical records and performed an independent medical examination on Madeline on July 29, 2015.
Dr. Sigurdardottir made the following findings and summarized her evaluation as follows:
MEDICAL HISTORY:
Madeline is a 2-year 4-month-old Caucasian female who was born via vaginal delivery at
40 weeks’ gestation after a normal pregnancy. The labor was slightly prolonged, some fetal heart decelerations were noted and the delivery ended with vacuum extraction. There was meconium stained amniotic fluid, requiring intubation and suctioning below vocal cords. The patient was 7 pounds 13 ounces at birth, had diminished respiratory effort at birth and Apgar scores were 4 after
1 minute and 9 after 5 minutes. The patient was briefly tended to in the transitional nursery, but then spent 2 days with mom in the newborn nursery prior to being discharged home, presumed to be in good health.
Madeline has been found to have significant delays in both motor and cognitive development. She has been diagnosed with a chronic static encephalopathy including cerebral palsy with left greater than right- sided symptoms, language delay and poor social interaction for age. MRI imaging has shown signs of old intracerebral hemorrhage and cystic periventricular leukomalacia. Due to the severity of Madeline’s delays, her case is being considered for NICA compensation.
* * *
Labor history:
Mom presented on 03/09/13 at 10:10 a.m. and was admitted for labor. The chart documents a total hours in labor as 62 hours and documents stage 1 as 60 hours 15 minutes,
stage 2 was 1 hour 54 minutes, and stage 3 as
4 minutes. An epidural anesthesia was used, the fetal heart rate tracing is not provided for our review, but there is documentation of decelerations without further clarification in an inpatient summary from Orange Park Medical Center. Mom reports having push for more than 1 hour and therefore vacuum extraction was used. Some documentation describes forceps attempt, but this cannot be verified on record review. Two vacuum attempts were needed and a third degree perineal laceration was sustained by Madeline’s mother. When Madeline was born, there is no documentation of shoulder dystocia, and she is noted to be blue and have poor respiratory effort. Suctioning was performed below vocal cords due to meconium staining of amniotic fluid. She had Apgar score of 4 at 1 minute. Her Apgar scores quickly improved being 9 after 5 minutes and
9 after 10 minutes with her only lack being in area of color. Arterial cord blood was sent revealing a pH of 7.16 with a pCO2 of
67.8 and pO2 of less than 47%. A venous cord blood was also sent with the pH of 7.24 and a pCO2 of 51. Madeline was 50 cm at birth,
3538 g and a head circumference of 32.5 cm, which places her head circumference to be at the 8th percentile, her length to be at the 34th percentile and her weight at birth to be at the 62nd percentile per the CDC growth curve. The patient was discharged home, presumed to be in good health.
Developmental and Medical History: Madeline’s mother reports early feeding difficulties. She recalls her being fairly floppy and that the parents were worried
about delayed visual fixation until about 3-4 months of age. Madeline’s mother brought her to her pediatrician around the age of 6 months for complaints of not grabbing toys and not showing interest in rolling over or sitting up. She had an early frenulectomy due to poor sucking and was referred for hip x-rays for poor mobility at the age of 15 months, which was found to be normal. The patient was referred to physical, occupational and speech therapy and was able to walk unassisted around the age of 20 months. The parents feel that her left side is weaker than her right. She seems unsteady, having a broad stance and frequent falling. The parents are also worried about her language development and report her having only 5-6 words (bye-bye, mama, dada, papa and milk) and a few signs at 2 yr 4 months of age. She seems to be very attracted to music and will want to listen to music and dance along. Madeline is not interested in interacting with her peers.
She loves to swing on swings and will often just go about the house on her own terms.
Her parents do feel that she will turn towards their face if they say her name, but that it has been difficult to get her to repeat words or point to pictures or label items. They do feel that she knows her body parts. Due to concerns for possible cerebral palsy, she was seen by Dr. Abram of Neurology in Nemours Children’s Specialty Care, Jacksonville in July of 2014 at the age of 15 months. A neurologic exam did comment on her
head circumference being below the 5th percentile, there being no dysmorphic features and that her neurologic exam did not have obvious asymmetries. An MRI performed at that time showed: Bilateral periventricular hyperintense FLAIR signal areas are seen with a few cystic changes more severe on the right side. Old hemorrhagic products are seen along the lining of the lateral ventricles. Corpus callosum is thin. Findings are consistent with periventricular leukomalacia. Myelination is appropriate for age. Size and configuration of the ventricles and basal cisterns appear normal. There is no evidence of restricted diffusion. No evidence of abnormal intracranial enhancement. The pituitary gland and cervical medullary junction region appears normal. Hippocampi appear normal. Posterior fossa structures including brain stem and cerebellum appear normal.
* * * Developmental testing: She has had the
following developmental testing performed in
August of 2014, PLS-5 language assessment with a comprehension of 87, expressive language of 89 and total score within the low range of normal. The Battelle Developmental Inventory, however, at the age of 17 months paints a different picture with motor skills at 57, self-help and adaptive skills of a standard score 55, social and emotional a standard score of 85, cognitive a standard score of 77 and communication standard score of 61.
* * *
NEUROLOGIC EXAMINATION: Mental status: Madeline is on the move throughout the visit, going from 1 toy to the next and seems significantly on her own terms for the majority of the visit. She does at times interact with her parents, but little eye contact is noted. She will at times come up
to the examiner briefly. She will look towards voice at times. She will follow simple commands such as stop or no. She will accept food from her parents’ hands but not have joint attention during that time. No clear repetitive behavior is noted. No understandable words are heard by the examiner. Cranial nerves: Her pupils are equal, they do react to light. She has conjugate eye movements for the most part, but occasional left eye extropia is noted, especially if she is looking up and to the right. She has symmetric facial features, but seems to keep her mouth open. Her hearing seems intact. Her motor exam reveals diminished axial tone with some tendency for slip through when held in vertical suspension. She has asymmetric tone, mainly in the lower extremities with increased resistance to passive range of motion in the left lower extremity. Her strength seems to be diminished in bilateral lower extremities and she will at times keep her knees and hips slightly flexed during ambulation. Reflexes are slightly brisker in the left lower extremity than the right. This is not noted in upper extremity. She seems to favor her right upper extremity on exam, using that consistently to grab for toys. Balance and coordination: There is significant abnormality with a broad based, slightly ataxic gait and frequent falls. Her intoeing does seem to lead to her tripping over her left foot. She will, however, stand up off the floor without difficulty. There is significant clumsiness with fine motor skills, both on the right and left upper extremity. There is no seizure-like occurrences and no clear tremor, no monoclinic jerking.
Overall assessment: Here we have a 2-year 4- month-old female with chronic static encephalopathy manifested by borderline microcephaly, left greater than right sided CP, moderate receptive and expressive language delay and some delays in social
interaction and attention. Her language testing from one year ago is outdated and her current language abilities from what can be observed here would result in her total language score below 70. She has motor disability with bilateral hemiplegic symptoms, but overall good functional skills with independent ambulation having been obtained at 20 months. She is also able to feed herself orally and has been relatively physically healthy from birth.
On review of the case, there is no evidence of a prenatal vascular events or periods of decreased fetal movements. On review of the labor and delivery records there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial cord blood pH being 7.16 does not support such an event.
Results of IME:
As to question 1: The patient is found to have a permanent but not substantial physical impairment and mental abilities that are delayed but progressing.
As to question 2: On review of medical records, there is minimal evidence of substantial birth asphyxia. Although initial Apgar score was 4 there was immediate recovery and the mild decrease in arterial cord blood pH is not below the 7.00 cut off. The neuroimaging findings are consistent with a hypoxic ischemic injury but do not help in the timing of such an injury.
As to question 3: At this time, Madeline’s prognosis regarding her motor development are good, with independent ambulation already in place. Her cognitive development seems to be more difficult to prognosticate at this time, but ongoing speech therapy along with further workup of possible autistic characteristics would be indicated. We expect ongoing progress in this area and we estimate her
life expectancy as being full. At this time, it seems likely that she will need significant ongoing supportive services, although the need for this lifelong is uncertain at this time.
I am therefore not recommending Madeline to be included into the NICA program and would be happy to answer additional questions.
Dr. Sigurdardottir’s opinion that Madeline has a permanent, but not substantial, physical impairment and mental abilities that are delayed, but improving, is credited.
Dr. Sigurdardottir’s opinion that there is minimal evidence of substantial birth asphyxia “but there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial blood pH being 7.16 does not support this event” is credited.
The greater weight of the evidence establishes through the opinions of two experts that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to Madeline’s brain during labor, delivery or the post- delivery period.
Here, the stipulated record demonstrates, along with Dr. Sigurdardottir’s expert opinion, that Madeline’s physical impairment is permanent, but not substantial, and that mental abilities are delayed, but progressing. While Madeline has some motor and mental deficits, these deficits do not render her permanently and substantially mentally and physically impaired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.
§§ 766.301-766.316, Fla. Stat. (2015).
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).
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.
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.
In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon all available evidence:
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).
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.
In the instant case, Petitioners filed a claim alleging that Madeline 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.").
Dr. Willis’ opinion that there was not “significant oxygen deprivation during labor and delivery” is consistent with Dr. Sigurdardottir’s opinion that there “is little to support a serious ischemic event.”
The greater weight of the evidence establishes that there was not an apparent obstetrical event that resulted in loss of oxygen or mechanical injury to Madeline’s brain during labor,
delivery and continuing into the post-delivery period as contemplated by the NICA statutes.
Even if the evidence to support a serious ischemic event were more substantial, 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)(the “Birnie" decision). Petitioners and Intervenors take the position that Madeline is permanently and substantially impaired. NICA takes the position that Madeline is not permanently and substantially mentally or physically impaired, irrespective of the timing or cause of any such impairment.
While Petitioners have presented factual evidence regarding Madeline’s difficult birth and that she has physical impairments and developmental delays, they have not established through expert opinion that Madeline has a permanent and substantial mental and physical impairment as contemplated by section 766.302. There have been no expert opinions filed contrary to the credible opinions set forth above by NICA’s experts. Thus, Madeline 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 Sarah W. Kitchen and Steven Kitchen, on behalf of and as parents of Madeline Elizabeth Kitchen, is dismissed with prejudice.
DONE AND ORDERED this 18th 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 18th 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 6396)
Rodney Stuart Margol, Esquire Margol & Margol, P.A.
2029 North 3rd Street Jacksonville Beach, Florida 32250 (eServed)
(Certified Mail No. 7014 1200 0002 3330 6402)
Richard E. Ramsey, Esquire Wicker, Smith, O'Hara,
McCoy and Ford, P.A.
50 North Laura Street, Suite 2700 Jacksonville, Florida 32202 (eServed)
(Certified Mail No. 7014 1200 M. Mark Bajalia, Esquire Bajalia Law | 0002 | 3330 | 6419) |
11512 Lake Mead Avenue, Suite | 301 | ||
Jacksonville, Florida 32256 | |||
(eServed) | |||
(Certified Mail No. 7014 1200 | 0002 | 3330 | 6426) |
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 1200 0002 3330 6433)
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 1200 | 0002 | 3330 | 6440) |
Eric J. Edelenbos, D.O. Suite A 1680 Eagle Harbor Parkway Orange Park, Florida 32003 (Certified Mail No. 7014 1200 | 0002 | 3330 | 6457) |
Robert Roland Powers, D.O. 1605 Kingsley Avenue Orange Park, Florida 32073 (Certified Mail No. 7014 1200 | 0002 | 3330 | 6464) |
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).
| Issue Date | Document | Summary |
|---|---|---|
| May 18, 2016 | DOAH Final Order | Child is not permanently and substantially mentally or physically impaired. |
