09-004812N Cedric Lewis And Brandi Scriven-Lewis, On Behalf Of And As Parents And Natural Guardians Of Trinitee Ra&Apos; Myah Lewis, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 30, 2011.

Summary: Infant's injuries not caused by injury to brain or spinal cord and does not suffer from permanent and substantial mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CEDRIC LEWIS AND BRANDI )

SCRIVEN - LEWIS, on behalf of and )

as parents and natural )

guardians of TRINITEE RA' MYAH )

LEWIS, a minor , )

)

Petitioner s , )

)

vs. ) Case No. 09 - 4812N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ORANGE PARK MEDICAL CENTER, )

INC., )

)

Intervenor . )

)

FINAL ORDER

By stipulation of the parties, and p ursua nt to a

November 18, 2010, Order, this cause came on for consideration

upon the stipulated record.

APPEARANCES

For Petitioners: Edward V. Ricci, Esquire

Darryl L. Lewis, Esquire

Searcy Denney Scarola Ba rnhart & Shipley

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor: Charles Thomas Shad, Esquire

Travase Erickson, Esquire

Saalfield, Shad, Jay, Stokes

& Inclan, P.A.

Post Office Box 41589

Jacksonville, Florida 32203 - 1589

STATEMENT OF THE ISSUE

Whether Trinitee Ra' Myah Lewis , a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensa tion Plan.

PRELIMINARY STATEMENT

On September 4, 2009, Cedric Lewis and Brandi Scriven -

Lewis, on behalf of and as parents and natural guardians of

Trinitee Ra' Myah Lewis (Trinitee), a minor, filed a petition

(claim) with the Division of Administrative He arings (DOAH)

entitled "Petition for Benefits Pursuant to Florida Statute

Section 706.301, et seq.," seeking a determination of whether

Trinitee's injuries are compensable under the Florida Birth -

Related Neurological Injury Compensation Plan.

The Petition named Richard L. Bridgewater, M.D., as the

"participating physician , " who rendered obstetrical services to

Brandi Scriven - Lewis in Orange Park Medical Center, Inc., in

connection with Trinitee's birth.

DOAH served the Florida Birth - Related Neurological I njury

Compensation Association (NICA) with a copy of the claim on

September 4, 2009 , and served Orange Park Medical Center on

September 9, 2009. On September 21, 20 09 , Orange Park Medical

Center filed a Petition to Intervene, which was granted by Order

of October 1, 2009.

After an extension of time in which to do so, NICA filed ,

on December 11, 2009, the Response required by s ection

766.305(4), Florida Statutes, stating that, upon medical advice,

Trinitee did not meet the definition of an infant who had

su ffered a "birth - related neurological injury" as defined by

section 766.302(2), in that Trinitee had not suffered an injury

which rendered her permanently and substantially mentally and

physically impaired.

Repeated attempts to serve Dr. Bridgewater were ma de until,

on February 20, 2010, service was accomplished. Dr. Bridgewater

has not sought to intervene in these proceedings.

T he case was repeatedly noticed for final hearing on dates

convenient to the parties , but , on October 22, 2010, the parties

filed a Joint Motion to Submit Stipulated Factual Record and

Written Argument in Lieu of a Contested Hearing. After a

prehearing conference, that joint motion was granted by an Order

for Submission Upon Stipulated Record , entered November 18,

2010.

A prehearin g stipulation was filed on February 3, 2011, and

ultimately, a stipulated record was filed , in two parts , on

February 4, 2011, and February 24, 2011. 1

The parties were permitted until February 18, 2011, in

which to file their proposed final orders. Only R espondent

filed a proposed final order, and that proposed final order has

been considered. 2

FINDINGS OF FACT

1. Cedric Lewis and Brandi Scriven - Lewis are the natural

parents and guardians of Trinitee Ra' Myah Lewis, a minor.

initee was born a live i nfant on November 11, 2004,

at Orange Park Medical Center, Inc., a licensed hospital located

in Orange Park, Florida.

3. The physician providing obstetrical services at the

time of Trinitee's birth was Richard L. Bridgewater, M.D., and

at all times materi al , Dr. Bridgewater was a participating

physician in the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

initee is the result of a single gestation, and her

birth weight was in excess of 2,500 grams.

5. To address the cause and timing of Trinitee's

neurologic impairment, if any, the parties stipulated to medical

records related to Mrs. Scriven - Lewis' ant e partum course and to

those records associated with Trinitee's birth and subsequent

development.

6. Mrs. Scriven - Lewis' prenat al course was without

significant complications.

7. On November 8, 2004, Mrs. Scriven - Lewis was admitted to

Orange Park Medical Center to rule out labor and possible

rupture of membranes. A vaginal examination at 7:00 p.m., 3

indicated that she was 1 cm d ilated, 50% effaced, and at

station - 3. The fetal heart rate was baselined in the 120 - 130's

with accelerations. Mrs. Scriven - Lewis was admitted for 23 - hour

observation for pregnancy - induced hypertension, with a 24 - hour

urine study in progress. Over time , l abor was ruled out, but

she was noted to have elevated blood pressure of 160/90 with

lower extremity swelling.

8. On November 9, 2004, the fetal heart rate was reactive

and reassuring with irregular contractions. A vaginal

examination at 10:36 a.m., indicated that Mrs. Scriven - Lewis was

1 cm dilated, 50% effaced, and at station - 3. She was diagnosed

with mild preeclampsia with borderline thrombocytopenia at term.

Also o n November 9, 2004, Mrs. Scriven - Lewis' pregnancy - induced

hypertension symptoms were stable and a nother vaginal

examination indicated that she was 1.5 cm dilated, 50% effaced,

and the baby was at a high station. The baby's fetal heart rate

remained reactive and reassuring with contractions that were

spaced. Pitocin was discontinued, and the records indicate that

a normal spontaneous vaginal delivery was expected upon onset of

active labor. Another vaginal examination was performed at

9:50 p.m., indicating Mrs. Scriven - Lewis was dilated to 1.5 cm,

50% effaced, and at station - 2.

9. Mrs. Scriven - Lewis continued to labor on through

November 10, 2004. A vaginal examination was performed at

6:54 a .m., with findings indicating she was 2 cm dilated,

70% effaced, and at station - 2. The fetal heart rate was

reactive and reassuring in the 1 40's , with good short - and long -

term variability with accelerations. Mrs. Scriven - Lewis'

membranes were ruptured , and moderate meconium was observed.

Pitocin was started , as well as an amnio - infusion , due to

decreased amniotic fluid at 3 cm per a sonogra m showing fetal

weight at eight pounds, two ounces. A normal spontaneous

vaginal delivery was still expected at that time .

10. Labor slowly and consistently progressed on

November 11, 2004, into the second stage of labor, and p itocin

was discontinued. T he fetal heart rate was reassuring and a

vaginal examination at 7:05 a.m., was at anterior lip, station

zero, with some molding. Dr. Bridgewater noted "overall

reassuring maternal and fetal status" and believed there was a

transition into the second stage of labor.

1 1 . On November 11, 2004, at 8:13 a.m., Mrs. Scriven - Lewis

had a low - grade fever of 100 degrees , but the fetal heart rate

was reassuring. She had reached complete dilation and

effacement and was at station 2. She was instructed on pushing

t echniques and was pushing in the correct manner.

12. Mrs. Scriven - Lewis progressed to complete dilation

with spontaneous contractions without p itocin. She began

pushing with a reassuring fetal heart pattern in the 140 - 150's.

Pitocin was restarted for th e second stage of labor to increase

the frequency of contractions. However, even with aggressive

pushing, she was unable to force the fetus' presenting parts

beyond a 2 station. Subsequently, abdominal, lower extremity

and vulvovaginal edema were noted. A fetal assessment was

notable for molding and mild caput . T he pelvis was adequate ,

and a vacuum assist was offered for traction and was agreed -

upon.

13. A vacuum assist was performed without complications,

although there was one pop - off. The molded f orehead was

delivered at 9:13 a.m., by vacuum - assisted delivery over a

midline episiotomy. The elongated forehead was delivered with

obvious " turtle sign " to the level of the orbits. A partial

McRoberts maneuver was used to deliver the posterior shoulder .

When the head was delivered, DeLee catheter suctioning of the

naso - oropharynx was performed on the perineum with some moderate

meconium.

14. At 9:14 a.m., the McRoberts corkscrew maneuver was

applied with suprapubic pressure without success. When deli very

attempts failed, Mrs. Scriven - Lewis' episiotomy was cut to a

fourth degree level at 9:15 a.m. The suprapubic pressure

paradoxically appeared to have worsened the delivery of the

anterior shoulder.

15. At 9:19 a.m., a "stat" cesarean section was call ed .

The shoulder dystocia was reduced at 9:22 a.m., with continued

attempts using the McRoberts corkscrew , and Trinitee was

delivered in floppy condition. Upon delivery, she was handed

off to a neonatologist in attendance.

initee's Apgar scores we re 0 at one minute, 1 at 5

minutes; 4 at 10 minutes; 4 at 15 minutes; 6 at 20 minutes; and

7 at 25 minutesinitee's cord blood was drawn with a pH of

7.21 with a base excess of - 9.1.

17. Upon delivery , Trinitee was noted to be limp, pale and

apneic. Minimal meconium - stained fluid was aspirated. She was

then intubated, and treated with compressions, oxygen and

100 percent ambu [bag] . Due to lack of an auscultated heart

rate (heart rate heard via device ) , three do s es of epinephrine

were administered a t 9:24, 9:25, and 9:27 a.m., in addition to

continued oxygen and chest compressions. At 9:28 a.m.,

Trinitee's heart rate was <100, so="" chest="" compressions="" and="">

were continued. Chest compressions ceased at 9:32 a.m., when

there was a regular heart rat e of 160, but oxygen continued. At

9:38 a.m., Trinitee had a spontaneous gasp and opened her eyes.

Boluses were administered between 9:31 a.m., and 9:42 a.m., for

metabolic acidosis. At 9:46 a.m., irregular respirations were

noted, and oxygen continued during Trinitee's transport to NICU.

Upon arrival in NICU, she was placed on a ventilator.

18. At 1 1 :05 a.m., Dr. Robert D. Garrison from Shands

Hospital arrived to evaluate Trinitee. He noted that she had no

spontaneous respiratory effort, and had hypo tonia, eyelid

fasiculations, pink color with adequate skin perfusion and a

large boggy scalp in the occiput area. A chest X - ray showed a

small right pneu mo thorax which subsequently resolved. An

antibiotics course was started, due to maternal temperature of

100.5 and rupture of membranes at 16 hoursinitee was then

transferred to Shands ' NICU.

initee was admitted to Shands NICU at 1:10 p.m., for

neonatal depression and respiratory distress. Her physical

examination upon admission determined tha t neurologically she

was hypotonic ; had a clenched right fist ; was tremulous with

occasional arching ; and was able to move her right arm and lower

extremities . However, she could not move her left arm. She

also was not alert. While at Shands, Trinitee w as treated for

neonatal depression, right pneumothorax, respiratory failure,

sepsis, patent ductus arteriosus (a shunt allowing blood to

bypass the lungs until they are fully developed) , seizures,

brachial plexus palsy, cephalohematoma, hypoxic - ischemic

en cephalopathy and a subdural hematoma.

20. On November 18, 2004, Trinitee was transferred to

Baptist - Wolfson ' s Children's Hospital in guarded condition on

room air. She was discharged from Baptist - Wolfson's Children's

Hospital on December 8, 2004, after b eing treated for right

phrenic nerve paralysis, murmur, thrush, hematologic

surveillance, seizures, and left brachial plexus palsy.

initee received follow - up neurological treatment at

Nemours Children's Clinic after h er discharge from Baptist -

Wolfso n 's Hospital. U pon examination when Trinitee was six

weeks of age, Dr. William Turk, neurologist , felt that,

considering her early history , Trinitee was doing surprisingly

well.

23. On January 17, 2005, at two - and - a - half months of age,

Trinitee's brach ial plexus injury was thought by the orthopedic

clinic physician to be a candidate for exploration and possible

repair due to persistent lack of movement of the upper

extremity.

24. At three months of age, Trinitee was seizure - free and

had a normal EEG, s o she was tapered off p henobarbital.

25. A report generated by Dr. Peter Murray , of Nemours'

orthopedic clinic , described Trinitee's visit on March 1, 2005,

by stating that Trinitee's mother had reported that Trinitee had

some increased spontaneous acti vity with the left upper

extremity while lifting from the shoulder in a recumbent

position as well as wrist and finger flexion and that the mother

had n ot noted any active elbow flexion. On examination,

Dr. Murray noted Trinitee had abduction in that shou lder to

about 30 degrees, 15 degrees flexion contracture of the elbow

and internal shoulder rotation , but there was no evidence of

active external rotation of the shoulderinitee was noted to

have full abduction of the shoulder passively as well as

ext ernal rotation of the shoulder being complete passively. A

pin test showed some impaired perception and sensibility in the

fingers and dorsum of her left hand and palm, which had improved

from her initial sensory examination at one month of age.

Nemours has continued to assist in and monitor Trinitee's

progress.

26. On May 18, 2005, Trinitee underwent a left brachial

plexus acute repair of C5, C6, and C7 nerve roots at Baptist -

Wolfson, with bilateral sural nerve grafting . There were no

complications.

27. Thereafter, Trinitee received occupational therapies

during her hospital course which continued after her discharge.

28. Therapy included weight - bearing exercises for the left

upper extremity and positioning of the left wrist. On August 9,

2005, a n occupational therapy evaluation determined that

Trinitee had bilateral upper extremity passive range of motion

within normal limits. Her left upper extremity active range of

motion was severely limited at the shoulder, elbow, wrist, and

hand, but her fi ne motor skills were considered age appropriate,

given her limited left upper extremity use.

29. Trinitee's August 12, 2005, physical therapy

evaluation by "Pediatric Therapy Works ! " found that her left arm

was floppy with no intentional movement noted, but that with

total body movement , the tone increased in the left upper

extremity. Hereafter, the term "left upper extremity" includes

the left arm and hand, unless stated otherwise.

30. By August 2005, Trinitee was tolerant of weight -

bearing exercises t o her left upper extremity, and with taping,

she was noted to extend her thumb and first two fingers while

keeping her wrist in neutral. She was also noted to accept more

weight bearing to the left upper extremit y and was more tolerant

to challenges. At a September 21, 2005, neurology visit,

Trinitee's mother reported to Dr. Turk some modest improvement

in Trinitee's left arm function and some increase d shoulder

abduction and finger flexion.

31. At ten months of age, Trinitee was seizure - free and

makin g reasonable progress developmentally. At that point , she

was discharged by Drs. Turk and Usmani - urish i , but continued

upon a follow - up consultation nine months later.

initee brought her wrist to neutral and her first

three fingers into extension i n October and November 2005.

Mrs. Scriven - Lewis also reported to Dr. Murray on October 4,

2005, that Trinitee had no overall change in her left upper

extremity except for some mild early forward flexion of the left

shoulder. Physical examination was abse nt for biceps flexion

and any left shoulder elevation. Some adduction of the left arm

across the chest was noted. Her occupational therapy re cords

indicate that in October and November 2005, Trinitee had

improved tonus of the left upper extremity holding weight

bearing with minimal elbow assist once her hand was positioned.

She also showed good shoulder extension while reaching to

activate m usical toys.

33. In December 2005, Trinitee's occupational therapist

reported that Trinitee showed increased tone in her left upper

extremity distally. She also kept her left extremity wrist in

neutral with tape. At the same time, Trinitee was noted to have

increased distal tone in the left upper extremity and had

increased active grasp to hold a toy.

34. In Janu ary 2006, Trinitee grasped beads with the

fingers of her left hand extended, and achiev ed 80 degrees

shoulder flexion to place the beads over her mother's head.

3 5 . In February 2006, Trinitee had movement of the left

upper extremity 70 - 80 degrees active ly in shoulder flexion to

manipulate toys on a table. Active movement of the thumb and

first and second fingers was also notedinitee's

February 21, 2006, re - evaluation by Caterina A. Tsombanidis , her

physical therapist, indicated that Trinitee was us ing her left

hand to assist occasionally to keep objects in place and

manipulate objects. She was able to move the first three

fingers involving radial and median nerves and raised her left

upper extremity in shoulder flexion to 70 degrees actively and

ab out 60 degrees abduction. She was able to prop up on elbows

in prone position and to bear weight on bilateral extended upper

extremities, especially on the left side . At that time,

Trinitee's physical therapist 's treatment note indicated that

Trinitee ha d a partial range of motion and active range of

motion to the left upper extremity while playing the "so big

game" and that she was able to pick up three rings and place

them into her left hand spontaneously.

36. The o ccupational therapy re - evaluation o n February 20,

2006, found that Trinitee's left upper extremity 's passive range

of motion was within normal limits with active range of motion

improved to 80 degrees left shoulder flexion and 20 degree s

elbow and wrist flexion , and that her left hand finge r extension

could grasp a toy. She fully bore weight on her left upper

extremity when given an assist for elbow extension. When

crawling, she only bore weight on her right upper extremity

(right arm) .

37. Physical therapy notes in March 2006, indicate t hat

Trinitee continued to improve being able to lift her left upper

extremity to 60 degrees to reach for a toyinitee was also

able to lift that upper extremity while s itting, to place it on

a table actively 70 degrees in shoulder abduction and flexion .

Active movement was noted at wrist, improving slightly, moving

to neutral. In March 2006, Trin i tee was noted by the

occupational therapist to bring her left shoulder to 90 degrees

actively and to place her hand on the table independently. She

also had partial and active range of motion to the left upper

extremity while on a ball to increase spontaneous movement , and

she used her left upper extremity in two - handed play.

38. In April 2006, Trinitee used a hand - over - hand assist

with her left - hand shoulde r flexion to 90 degrees to make an art

projectinitee was subsequently removed from the

occupational schedule due to poor attendance. As of April 4,

2006, her mother reported her as actively using her shoulder,

and a physical examination by Dr. Murray at Nemours f ound

Trinitee with active shoulder abduction and forward flexion to

approximately 80 degrees, and forward flexion to approximately

70 degrees , respectively . During ambulation , she was noted to

carry the elbow at approximately 60 degrees of fl exion, but also

would extend the elbow during ambulation, and she was seen to

have digital and wrist extension to neutral.

39. An April 2006 physical therapy note indicated that

Trinitee was extending her upper extremity nicely on the left

side and was re aching with increased skill, as well as having

increased movement of the wrist in neutral position with

manipulation of activitiesinitee was more active with

activities of her left upper extremity when her right upper

extremity movement was limited. She was also found to flex her

trunk to the right to increase her left upper extremity movement

when lifting above 90 degrees.

40. As of June 2006, Trinitee continued to show increased

functional ability with the left upper extremity, by grabbing,

attempt ing to throw , and using her left upper extremity to put

objects into a container. She also had increased range of

motion , active 90 - 110% with a tendency to extend backwards to

increase her range of motion with activities. Despite her

improvement, she was discharged from " Pediatric Therapy Works !"

on August 30, 2006, for non - compliance with its attendance

policy and a less than 50% attendance rate.

41. By age two, neurologically, Trinitee was making good

progress , including talking, putting words together , and

understanding what was being said to her , and h er parents felt

that she was quite intelligent. Since she was seizure - free and

developmentally making progress, Trinitee was not scheduled for

any follow - up appointments with Dr. Murray at that time .

42. On January 16, 2007, at age two, during a follow - up

evaluation, Mrs. Scriven - Lewis reported that Trinitee was

continuing to make progress in her left upper extremity

function. A physical examination determined that Trinitee was

undergoing continued r ecovery of her left upper extremity

brachial plexus reconstruction with forward flexion of the left

shoulder to 90 degrees, abduction to 90 degrees, biceps flexion

to 90 degrees, wrist extension to - 10 degrees , and digital

extension to neutral.

43. On Jul y 10, 2007, Trinitee's mother reported no

complaints regarding her progress. At that time, her

essentially routine physical examination by Dr. Murray r evealed

that Trinitee had excellent biceps flexion at 3, extended the

wrist to neutral , and extended her index finger to beyond

neutral. Forward flexion and abduction of the shoulder were

both to 90 degrees , with passive forward flexion of her left

shoulder to 170 degrees and external rotation to 90 degrees in

abduction. A Hoffer latissimus transfer was discussed with

Mrs. Scriven - Lewis , and Trinitee was to return to the clinic

again in November 2007.

44. On May 9, 2008, "after a long hiatus," Mrs. Scriven -

Lewis indicated that Trinitee's left upper extremity was working

well but that she had concerns ab out Trinitee's left shoulder

animation. Physical examination revealed abduction of the left

arm to approximately 80 degrees, forward flex ion to

approximately 80 degrees with the shoulder in the internally

rotated position. Biceps strength was found to be excellent at

4/5 , and Trinitee was able to extend her wrist to neutral with

digital extension and good grasp and release. Her left shoulder

could be passively externally rotated to 45 degrees in the

a dducted position and 80 degrees in the abducted positi on. At

that point in time, Mrs. Scriven - Lewis agreed to have Trinitee

undergo a left shoulder Hoffer latissimus transfer.

initee returned for an orthopedic visit to Nemours

and Dr. Murray on November 20, 2009. At that visit, her mother

indicated t hat Trinitee's left upper extremity was working well ,

but that Trinitee could not raise her arm above her head or put

her hand behind her head. It also was reported that Trinitee

was doing well in kindergarten. Examination revealed passive

range of motio n of the left shoulder was forward flexion 170

degrees, external rotation in abduction 80 degrees , and external

rotation in adduction 80 degrees. Forward flexion of the

shoulder was 80 degrees and also for abduction. Left elbow

range of motion was 30/130 with strength at 4/5. Left wrist

extension was to 120 degrees , but Trinitee was unable to touch

the back of her head , due to loss of internal rotation of the

left shoulder. A latissimus transfer was discussed to augment

Trinitee's left shoulder external rotation.

46. On December 18, 2009, due to lack of wrist extension

and lack of shoulder external rotation, Trinitee underwent , at

Nemours, a left wrist flexor carpi ulnaris to extensor carpi

radialis brevis tendon transfer; a left latissimus dorsi and

le ft teres major tendon transfer to left supraspinatus tendon

and a one - and - a - half shoulder spica cast application without

complications. She was five years old at the time. At her

surgical follow - up visit on February 3, 2010, Trinitee showed

evidence of e arly range of motion of the shoulder in abduction

and external rotation , both at 90 degrees. By March 5, 2010,

she was able to touch the back of her head and need ed to wear

her brace only at night.

initee currently attends Discovery Point Child

Dev elopment Center. The medical evaluation completed by

Suncoast Pediatric Care dated March 3, 2009, indicates that

"This child may participate fully in school activities including

physical education." Additionally, her Individual Child Profile

for the fall checkpoint date of October 16, 2009, indicates that

she does not often use her left arm, but, nonetheless, she has

balance while moving, climbs up and down, pedals and steers a

tricycle, and can throw, kick , and catch , with increasing

control. She also u ses tools for writing and drawing to make

basic strokes and some recognizable objects. In all other areas

of her development, she met the goal for the fall checkpoint

date.

48. Regarding Trinitee's general development,

Mrs. Scriven - Lewis indicated on the Oak Hill Hospital

Rehabilitation Center Pediatric/Adolescent Intake Form, filled

out when Trinitee was five years old, that Trinitee held her

head up between 3 - 6 months; stood at 1 - 2 years; was bowel -

trained at 2 - 3 years; sat unsupported at 1 - 2 years; wal ked

unaided at 1 - 2 years; and fed herself with a spoon at 12 months.

According to her mother, Trinitee's favorite activities at age

five included playing, riding her bike, and coloring. With

regard to communication skills, her mother represented that

Tri nitee did not have difficulty expressing her thoughts,

feelings, and needs to other people, either verbally or non -

verbally ; that her primary form of communication is verbal ; and

that her speech is a little slurred , but her voice is normal.

Trinitee also appear ed to understand speech normally for her

age. She did not repeat questions. She did not have any issues

with coughing, choking while swallowing , or with chewing and

swallowing. She ha d not had any issues regarding her ability to

read or write. Fo r recreational activities, Trinitee r ode her

bike, color ed , paint ed and play ed on a swing and with cards.

49. On March 2, 2010, Trinitee was five years and three -

plus months of age, and took a Preschool Language Scale - 3 test.

Her auditory comprehension s core indicated that she was at the

age equivalent of five years and eight months old. Her

expressive comprehension score indicated that she was at the

equivalent age of five years and 11 months old. Her total

language score indicated that she was at the age equivalent of

five years and seven months old. Her March 2, 2010, Oak Hill

Rehabilitation Services Outpatient Pediatric Assessment for

speech therapy indicated , in the clinical findings , that

Trinitee had an auditory comprehension age equivalent of fi ve

years eight months , and that she had an expressive language

score of five years, 11 months . However, she obtained an

articulation (speaking, pronunciation, enunciation) score of

only three years, 11 months.

50. On September 30, 2010, Trinitee was disc harged from

therapy because she stopped coming in.

51. Pertinent to this case, coverage is afforded by the

Birth - Related Neurological Injury Compensation Plan for infants

who suffer a "birth - related neurological injury," defined as an

"injury to the brain or spinal cord of a live infant . . .

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."

§ 766.302(2), Fla. Stat.

52. Based on the parties' stipulations, the issue to be

resolved herein is whether the record supports the conclusion

that, more likely than not, any injury that Trinitee may have

sustained dur ing the statutory period resulted in a permanent

and substantial mental and physical impairment as required for

coverage under the Plan. See § 766.302(2), Fla. Stat.

53. NICA's position is that Trinitee has a substantial

motor impairment because she ha s brachial plexus palsy, but that

her injury does not arise from damage to the brain or spinal

cord. In addition, it is NICA ' s position that Trinitee does not

have any permanent or substantial mental impairment

54. Among the items in evidence is a report of Donald C.

Willis, M.D., an expert in maternal - fetal obstetrics, who

concluded that there had been an obstetrical event ( shoulder

dystocia ) , that caused loss of oxygen to the brain and

mechanical trauma to the spinal nerve roots. He was unable to

comme nt as to the severity of the injuries. Apparently,

Dr. Willis' conclusion was based solely on a records review,

because his report does not mention an examination of Trinitee.

5 5 . In contrast, Dr. Michael S. Duchowny, a board -

certified pediatric neurolog ist , examined Trinitee . A ccording

to Dr. Duchowny, Trinitee has a substantial motor impairment

because she has a brachial plexus palsy. However, it was also

Dr. Duchowny's opinion that Trinitee's brachial plexus palsy

resulted from a peripheral nerve inj ury and was not the result

of damage to the brain or spinal cord. While the foregoing

condition was characterized by Dr. Duchowny as permanent, and he

described Trinitee's palsy as "permanent," and "moderate to

severe," it was also Dr. Duchowny's opinion that Trinitee did

not have any permanent or substantial mental impairment. In

particular , Dr. Duchowny testified , in pertinent part , as

follows:

* * *

A : . . . I thought that Trinitee did have

a substantial motor impairment because she

had a brachia l plexus palsy, which involved

multiple cervical and probably high thoracic

segments of her brachial plexus, so this was

a severe motor impairment.

However, the motor impairment resulted from

damage to the brachial plexus, which is

outside the spinal cord and, therefore,

outside the central nervous system. So even

though there was a substantial impairment

and permanent motor impairment, it did not

arise from damage to the central nervous

system, either the brain or spinal cord.

I also thought that Trinit ee did have a

speech dysarthria, which was highly [likely]

to be developmentally based , but overall,

her examination showed no findings that

suggested a substantial or permanent mental

impairment.

* * *

My opinion, I do not believe that Trinitee's

mo tor impairment is a result of an injury to

the brain or spinal cord.

* * *

. . . I believe that she had neither a

permanent nor substantial mental impairment.

* * *

I didn't find any evidence of brain damage

in Trintee.

* * *

Q : Well, based o n your understanding of

what is required in order for a child to

receive compensation through NICA, did

Trinitee Lewis sustain such an injury with

respect to her physical impairment?

A : I'm sorry, I need to qualify my previous

answer. I don't think she met any of the

criteria because her physical impairment is

due to an injury outside the central nervous

system, so she doesn't meet criteria on that

basis.

Q : Doctor, if you would, help me understand

that again briefly .

When you say her injury was o utside the

central nervous system, where in your

opinion was the injury?

A : The nerve root in the brachial plexus.

Q : And the nerve root in your opinion then

does not connect to the central nervous

system?

A : It connects, but is part of the

periphera l nervous system.

* * *

Q : Doctor, this will be a somewhat broad

question, but I'm going to rely on you to

fill in the details.

If you would please give me in as minute

details as possible all the reasons you

believe that Trinitee Lewis does not qual ify

for having a mental impairment that would

provide her with compensation under NICA.

* * *

A: The examination doesn't reveal findings

one would expect to see with a substantial

mental impairment . In order to have a

substantial mental impairment, o ne would

anticipate that the child would have severe

mental problems, probably be mentally

retarded; and on the examination that I

performed, it is clear that Trinitee was not

mentally retarded. So, you know, I think

that was fairly evident from the

exami nation, and that would suggest that she

was not eligible for NICA on that basis.

* * *

Q : . . . Doctor, do you have an opinion as

to whether or not that speech dysarthria

will be permanent or is that is [sic]

something that will subside with time?

A : I think it will improve with time. I

don't know where it will ultimately end up.

I think she will be better as time goes on.

5 6 . While it is clear that Trinitee had a difficult

delivery and permanent and substantial motor ( physical )

impairment, given the record, it must be resolved that Trinitee

(1) did not suffer an injury to the brain or spinal cord; and

(2) does not suffer from permanent and substantial mental

impairment .

CONCLUSIONS OF LAW

5 7 . The Division of Administrative Hearings has

jurisdict ion over the parties to, and the subject matter of,

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

5 8 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irres pective of fault, for

birth - related neurological injury claims" relating to births

occurring after January 1, 1989. § 766.303(1), Fla. Stat.

5 9 . The injured infant, her or his personal

representative, parents, dependents, and next of kin, may seek

compen sation under the plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), and 766.305(1), Fla. Stat. The Florida Birth -

Related Neurological Injury Compensation Association, which

administers the Pla n, 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.

60 . 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 a ssigned. § 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 c hapter 120, Florida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

6 1 . In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon

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 subs tantially 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).

(b) Whether obstetrical services were

delivered by a participating physician in

the cours e 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 po stdelivery

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 part icipating physician

at birth." § 766.31(1), Fla. Stat.

6 2 . Pertinent to this case "birth - related neurological

injury" is defined by section 766.302(2), to mean:

Injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

singl e 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 an 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.

6 3 . Here, the pro of failed to support a conclusion that,

more likely than not, Trinitee has permanent and substantial

mental impairment. The record also demonstrates that her

infirmities , although acquired during the statutory period , were

not caused by an injury to the b rain or spinal cord ,

irrespective of the timing or cause. Consequently, given the

provisions of s ection 766.302(2), Trinitee does not quali f y for

coverage under the Plan. See also §§ 766.309(1) and 766.31(1),

Fla. Stat.; Humana of Fla., Inc. v. McKaughan , 652 So. 2d 852,

859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory

substitute for common law rights and liabilities, it should be

strictly construed to include only those subjects clearly

embraced within its terms."), approved , Fla. Birth - R elated

N eurological Injury Comp. Ass'n v. McKaughan , 668 So. 2d 974,979

(Fla. 1996).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED:

The claim for compensation filed by Cedric Lewis and

Brandi Scriven - Lewis, on behalf of and as natural guardians of

Trinitee Ra' Myah Lewis, a minor, is dismissed with prejudice.

DONE AND ORDERED this 30th day of March , 2011, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrativ e 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 30th day of March , 2011 .

ENDNOTES

1/ The stipulated record is com posed of 2406 Bates stamped

pages, house d in five notebooks, designated as follows: Jt. Ex.

A: Medical records, including fetal heart monitor strips, from

Orange Park Medical Center, I nc., for Brandi Scriven - Lewis dated

June 30, 2004 - November 13, 2004 (Bates 1 - 777); Jt. Ex. B:

Medical records, Orange Park Medical Center, Inc., for Trinitee

Lewis dated November 11, 2004 (Bates 778 - 831); Jt. Ex. C:

Medical records from Shands - Jacksonvil le for Trinitee Lewis

11/11/04 - 11/18/04 (Bates 832 - 1063); Jt. Ex. D: Medical records

from Baptist - Wolfson's Children's Hospital for Trinitee Lewis

11/18/04 - 12/8/04 , updated 5/18/05 - 5/19/05, 5/24/05, 12/18 - 19/09

(Bates 1064 - 1655); Jt. Ex. E: Medical recor ds from Nemours

Children's Hospital for Trinitee Lewis 12/16/04 - 10/4/04 , updated

medical records 11/18/04 - 3/5/10; Jt. Ex. F: Medical records

from Rehab Kinetics for Trinitee Lewis 1/17/05 - 7/6/05 (Bates

1963 - 1991); Jt. Ex. G: Records from Pediatric Associ ates at

Argyle for Trinitee Lewis , dated December 9, 2004 (Bates 1992 -

2011); Jt. Ex. H: Medical records from Pediatric Therapy Works!

for Trinitee Lewis 8/9/05 - 8/30/06 and additional records

9/12/05 - 7/17/06 (Bates 2012 - 2065); Jt. Ex. I: Medical records

f rom Carol Tietz, OT (Pediatric Therapy Works!) for Trinitee

Lewis 8/9/05 - 12/20/06 (Bates 2066 - 2083); Jt. Ex. J: Medical

records from Oak Hill Hospital for Trinitee Lewis dated 7/4/07

(Bates 2084 - 2102); Jt. Ex. K: Medical records from Dr. Rizwan

Qureshi f or Trinitee Lewis 11/18/05 - 3/2/07 and updated medical

records 1/13/05 - 8/23/10 (Bates 2103 - 2164); Jt. Ex. L: School

records from Discovery Point Child Development Center for

Trinitee Lewis 10/16/09 - 1/10/10 (Bates 2165 - 2178); Jt. Ex. M:

Donald C. Willis, M .D.'s report dated November 9, 2009 (Bates

2179 - 2180); Jt. Ex. N: Michael S. Duchowny, M.D.'s report dated

12/2/09 (Bates 2181 - 2184); Jt. Ex. O: Deposition of Michael S.

Duchowny, M.D., of 11/15/2010, and Exhibits 1 - 2 thereof (Bates

2185 - 2271); Jt. Ex. P: Petitioners' Response to Respondent's

First Set of I nterrogatories dated 3/10/2010 (Bates 2272 - 2281);

Jt. Ex. Q: Intervenor Orange Park Medical Center, Inc.'s

Verified Responses to Respondent's Interrogatories dated

1/12/2011 (Bates 2282 - 2289).

2/ R espondent's proposal was filed on February 18, 2011, and

the stipulated record was completed on February 24, 2011, with

the filing of Jt. Exs. R and S, which exhibits all parties

agreed in writing had inadvertently not been transmitted

earlier, with the re st of the stipulated record on February 4,

2011.

3/ All military or universal times have been converted to

standard times. It is noted that some times as recorded in the

medical records are inconsistent and/or contradictory . W herever

possibl e , they hav e been reconciled by the undersigned.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified M ail No. 7010 1670 0000 3097 0775)

Edward V. Ricci, Esquire

Darryl L. Lewis, Esquire

Searcy Denney Scarola Barnhart & Shipley

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(Certified Mail No. 7010 1670 0000 3097 0782)

Charles Thomas Shad , Esquire

Travase Erickson, Esquire

Saalfield, Shad, Jay, Stokes & Inclan, P.A.

Post Office Box 41589

Jacksonville, Florida 32203 - 1589

(Certified Mail No. 7010 1670 0000 3097 0799)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. 7010 1670 0000 3097 0805)

Richard L. Bridgewater, M.D.

16782 Northwest 67th Avenue

Hialeah, Florida 33015

(Certified Mail No. 7010 1670 0000 3097 0812)

Amy Rice, Acting Investigation Manager

Consumer Ser vices Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3097 0829)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Driv e, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 0836)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Flo rida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompani ed by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth - Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.