STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTIN AND JADE WILES, on behalf

of and as parents and natural guardians of LENNOX WILES, a minor,

vs.

Petitioners,

Case No. 16-3593N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent,

and

ALEXANDER J. BRICKLER, M.D.; NORTH FLORIDA WOMEN'S CARE; AND TALLAHASSEE MEMORIAL HEALTHCARE, INC.,

Intervenors.

/

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

January 24, 2017.

STATEMENT OF THE CASE

On May 12, 2016, Petitioners, Justin and Jade Wiles, on behalf of and as parents and natural guardians of Lennox Wiles (Lennox), 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 was filed pro se. The Petition named A.J. Brickler, M.D., as the physician who provided obstetric services at the birth of Lennox on May 11, 2014, at Tallahassee Memorial Hospital in Tallahassee, Florida.

DOAH served NICA and A.J. Brickler, M.D., with a copy of the Petition on June 28, 2016. DOAH served Tallahassee Memorial Hospital (TMH) with a copy of the Petition on June 30, 2016.

On August 2, 2016, Alexander J. Brickler, M.D., and North Florida Women’s Care filed a Petition for Leave to Intervene, which was granted by Order dated August 16, 2016. On November 1, 2016, TMH filed a Motion for Leave to Intervene, which was granted by Order dated November 2, 2016.

Notices of Appearance were filed by attorneys on behalf of Petitioners on August 24, 2016. Petitioners, now represented by counsel, filed a Motion for Leave to Amend Petition, which was granted. An Amended Petition Under Protest was filed.

On January 24, 2017, NICA filed a Motion for Summary Final Order, asserting that Lennox did not sustain a birth-related neurological injury. TMH and Dr. Brickler requested and received an extension of time in which to respond to NICA’s Motion.

Dr. Brickler and North Florida Women’s Care filed a Withdrawal of

Motion to Defer Ruling or Hearing on NICA’s Motion for Summary Final Order on March 8, 2017. The following day, TMH filed a Notice of Withdrawal of Opposition to NICA’s Motion for Summary Final Order. Petitioners did not file a response to NICA’s Motion for Summary Final Order. However, Petitioners’ Amended Petition Under Protest seeks an order finding that the claim is not compensable under the NICA statutes. Consequently, there is no longer opposition to NICA’s Motion, and a hearing is no longer

necessary.

FINDINGS OF FACT

1. Lennox Wiles was born on May 11, 2014, at Tallahassee Memorial Hospital located in Tallahassee, Florida. Lennox weighed in excess of 2,500 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Lennox, to determine whether an injury occurred 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. In an affidavit dated January 23, 2017, Dr. Willis set forth his findings and opinion in pertinent part as follows:

   It is my opinion the mother was not in labor, so the injury did not occur during labor.

   Delivery was by Cesarean section, so hypoxic brain injury did not occur during delivery.

   
   

   The baby was crying at birth, again suggesting there was no significant brain

   
   

   injury during delivery. Respiratory distress occurred shortly after delivery and required bag and mask ventilation for 30 seconds.

   Apgar score was 9 by 5 minutes. Spontaneous respiratory activity resumed and the baby was left with the Labor and Delivery staff. Once the NICU staff left the baby with the L & D staff, this would indicate the baby was stable and would end the immediate post- delivery period. It would be unlikely that significant hypoxic brain injury occurred during post-delivery period, which would be the brief period from delivery until the baby was left with the L & D staff. Based on this information, it does not appear this child suffered oxygen deprivation sufficient to cause brain injury during the labor, delivery or the immediate post delivery period.

   
   

   In conclusion, 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.

   
   

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

   
   

   (Dr. Sigurdardottir), a pediatric neurologist, to examine Lennox and to review his medical records. Dr. Sigurdardottir examined Lennox on October 19, 2016. In an affidavit dated January 19, 2017, Dr. Sigurdardottir summarized her findings from the medical evaluation and opined as follows:

   Lennox is found to have substantial motor and mental impairment at this time. At the age of [2-1/2], he is dependent on his caretakers for all care and although he can grab toys and indicate wants and needs in a very simple manner, he has what seem to be significant cognitive delays. His motor disability is significant.

   
   

   There is evidence of decreased fetal movement and nonreassuring fetal heart rate. This led to his cesarean section. The patient did have signs of ischemia including coagulopathy at birth and went into a persistent pulmonary hypertension suggestive of fetal distress.

   His current clinical picture is that of cerebral palsy. The injury is likely to have occurred prenatally, prompting decreased fetal movements. The mother was however not in active labor at time of delivery.

   
   

   At this time, Lennox’s prognosis for life expectancy is excellent, but for full recovery is extremely guarded as he has substantial mental and physical impairment and is not sitting at this time.

   
   

   In light of the above details, and the absence of active labor at time of delivery, I do not recommend Lennox being included in the Neurologic Injury Compensation Association 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. Sigurdardottir’s opinion that while Lennox has substantial motor and mental impairment, Lennox’s cerebral palsy is likely to have occurred prenatally and there was no active labor at the time of delivery. 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 by any contrary expert opinions, established that Lennox 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. Therefore, Lennox is not eligible for benefits under the Plan.

§§ 766.302(2) and 766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Amended Petition Under Protest filed by Justin Wiles and Jade Wiles, on behalf of and as parents and natural guardians of Lennox Wiles, a minor, is dismissed with prejudice. The final hearing scheduled for April 20, 2017, is cancelled.

DONE AND ORDERED this 16th day of March, 2017, 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 16th day of March, 2017.

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. 7016 0910 0001 7980 4254)

Craig A. Dennis, Esquire

Dennis, Jackson, Martin & Fontela, P.A. Suite 200

1591 Summit Lake Drive Tallahassee, Florida 32317 (eServed)

(Certified Mail No. 7016 0910 0001 7980 4261)

Thomas H. Leeder, Esquire Leeder Law

Suite 202

8551 West Sunrise Boulevard Plantation, Florida 33322 (eServed)

Certified Mail No. 7016 0910 0001 7980 4278)

Scott M. Newmark, Esquire Cohen & Newmark

Suite 200E

411 East Atlantic Avenue Delray Beach, Florida 33483 (eServed)

(Certified Mail No. 7016 0910 0001 7980 4285)

Tana D. Storey, Esquire Rutledge Ecenia, P.A. Suite 202

119 South Monroe Street Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7016 0910 0001 7980 4292)

Brian A. Newman, Esquire Pennington, P.A.

215 South Monroe Street, Second Floor Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7016 0910 0001 7980 4308)

David W. Black, Esquire Frank, Weinberg & Black, P.L.

Justin Senior, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7016 0910 0001 7980 4339)

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: 16-003593N

Orders for Case No: 16-003593N