STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATTY WILSON, on behalf of and as parent and natural guardian of LUKAS WILSON, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 15-3936N

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 March 31,

2016.

STATEMENT OF THE CASE

On July 13, 2015, Petitioner, Patty Wilson, on behalf of and as parent and natural guardian of Lukas Wilson (Lukas), 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 Vicky Griffin, D.O., as the physician who provided obstetrical services at the birth of Lukas on

August 9, 2010, at Baptist Hospital located in Pensacola, Florida.

DOAH served NICA with a copy of the Petition on July 17, 2015. DOAH served Baptist Hospital Pensacola with a copy of the Petition on July 21, 2015. On July 17, 2015, DOAH attempted service on Vicky Griffin, D.O., by certified mail. However, the envelope was returned to DOAH from the United States Postal Service marked “Return to Sender, Unable to Forward,” on

August 7, 2015. DOAH attempted to obtain a current address for Dr. Griffin from the Florida Department of Health’s (DOH) website. However, according to the DOH website, the address DOAH used was the same address on file at DOH.

As of the date of this Summary Final Order of Dismissal, Baptist Hospital Pensacola has not petitioned to intervene in this proceeding.

On March 10, 2016, the parties filed an Agreed Response to Order dated March 2, 2016, stating that a hearing is not necessary and should not be scheduled, and that NICA anticipated filing a Motion for Summary Final Order. On March 31, 2016, NICA filed a Motion for Summary Final Order, asserting that Lukas did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. As of the date of this Summary Final Order of Dismissal, no response, other than

what was stated in the Agreed Response to Order, has been filed to the Motion for Summary Final Order.

FINDINGS OF FACT

1. Lukas Wilson was born on August 9, 2010, at Baptist Hospital located in Pensacola, Florida. Lukas weighed 2,699 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Lukas. Dr. Willis wrote a medical report dated December 2, 2015, and affirmed his opinion in an affidavit dated March 23, 2016, as follows:

   1. In summary, delivery occurred at 36 weeks due to preterm labor. The baby was not depressed at birth and had normal Apgar scores of 8/9. No resuscitation was required at birth. The child developed a seizure disorder with Autism and ADHD. Genetic evaluation was negative. MRI of the brain at about three years of age was normal. These findings do not suggest a birth related hypoxic brain injury.

      
      

   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 child’s brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period.

      
      

3. NICA retained Laufey Y. Sigurdardottir, M.D.

   
   

   (Dr. Sigurdardottir), a pediatric neurologist, to examine Lukas and to review his medical records. Dr. Sigurdardottir examined Lukas on February 17, 2016. Dr. Sigurdardottir wrote a medical report on the date of the examination regarding her independent

   
   

   medical examination of Lukas, and in an affidavit dated March 30, 2016, Dr. Sigurdardottir summarized her opinion as follows:

   1. The summary of the examination is as follows:

      
      

      Here we have a 5-year 5-month-old male born at 36 weeks via a somewhat traumatic vaginal delivery with vacuum extraction and a scalp hematoma. His Apgar scores were, however, 8 after 1, 9 and [sic] 5 minutes. He has declared himself as having mild delays both with early motor delays and mild language delays, delay in adaptive functioning and an autistic spectrum disorder. Neuroimaging has, however, been normal. An extensive metabolic and genetic workup has been normal. Review of birth records does not indicate serious problems during the delivery, although it was somewhat lengthy and patient had only mild abnormalities on blood gas performed shortly after birth. Therefore, our results are as follows:

      
      

      . . . The patient is found to have no permanent substantial physical impairments and to have mild to moderate mental impairment mainly in areas of autism spectrum disorder.

      
      

      . . . There is evidence of a slightly traumatic birth, but no evidence of a clear hypoxic ischemic injury as Apgar scores were normal and subsequent neuroimaging has been normal.

      
      

   2. As such, it is my opinion that the IME and record review do not support a finding that Lukas suffered a birth-related neurological injury. I therefore do not recommend consideration for inclusion 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 or spinal cord occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Lukas is found to have no substantial physical impairment and has a mild to moderate mental impairment mainly in the area of autism spectrum disorder. Dr. Sigurdardottir’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 Lukas did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, Lukas 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 Patty Wilson, on behalf of and as parent and natural guardian of Lukas Wilson, is dismissed with prejudice.

DONE AND ORDERED this 18th day of April, 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 April, 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 8895)

Patty Wilson

135 Kendrick Lane

Picayune, Mississippi 39466

(Certified Mail No. 7014 1200 0002 3330 8901)

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202 Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7014 1200 0002 3330 8918)

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 8925)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

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: 15-003936N

Orders for Case No: 15-003936N