11-002960N Tasha Roberts On Behalf Of And As Parent And Natural Guardian Of Billy Ray Smith, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 7, 2011.

Summary: Infant's problems most likely were not acquired in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital, nor are they due to oxygen deprivation or mechanical injury. (SFO)

Case No. 11-2960N

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TASHA ROBERTS on behalf of and )

as parent and natural guardian SUMMARY FINAL ORDER OF DISMISSAL )

of BILLY RAY SMITH, JR., a )

minor, )

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

Respondent. )

)

)

)

This cause came on for consideration upon the Florida

Birth-Related Neurological Injury Compensation Association's

(NICA's) Motion for Summary Final Order.

STATEMENT OF THE CASE

1. On June 13, 2011, Petitioner Tasha Roberts filed, with

the Division of Administrative Hearings (DOAH), a Petition

(claim) on behalf of and as parent and natural guardian of

Billy Ray Smith, Jr., a minor, for compensation under the

Florida Birth-Related Neurological Injury Compensation Plan

(Plan) for injuries allegedly associated with Billy Ray's birth

on October 3, 2008, at Lakeland Regional Medical Center, a

hospital in Lakeland, Florida.

2. DOAH served the Florida Birth-Related Neurological

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

on June 15, 2011, and served Jill Hendry, ARNP, and Lakeland

Regional Medical Center (each) on June 16, 2011. There have

been no petitions to intervene.

3. On September 30, 2011, after an extension of time in

which to do so, NICA filed its Response to the Petition for

Benefits and gave notice that NICA was of the view that

Billy Ray did not suffer "a birth-related neurological injury"

as defined in section 766.302(2), Florida Statutes. The

Response further requested a hearing be scheduled to resolve the

issue of compensability.

4. By an Order entered October 4, 2011, the parties were

required to provide the issues still in dispute, mutually

agreeable dates for hearing, and the appropriate venue for

hearing.

5. On October 18, 2011, NICA's attorney filed a Joint

Response to the September 30, 2011 Order, reciting that the

parties had conferred; that NICA intended to file a motion for

summary final order, and that the parties requested that a

hearing be scheduled only after any order on the motion is

entered and not before December 15, 2011.

6. On October 26, 2011, NICA served and filed its Motion

for Summary Final Order, the predicate for which is that there

was no apparent obstetrical event that resulted in loss of

oxygen or mechanical trauma to the baby. 1/

7. Attached to NICA's Motion for Summary Final Order were

the medical reports and affidavits of medical physicians

Donald C. Willis, M.D., a board-certified obstetrician,

specializing in maternal-fetal medicine, and of Raymond J.

Fernandez, M.D., a board-certified pediatric neurologist. 2/

8. Dr. Willis' affidavit delivered the following opinion

within a reasonable degree of medical probability:

* * *

3. The Florida Birth-Related

Neurological Injury Compensation Association

retained me as its expert in maternal-fetal

medicine to review the medical records of

both the child, BILLY RAY SMITH, JR., and his

mother TASHA ROBERTS f/k/a Tasha Hamblin.

The purpose of my review of these medical

records was to determine whether an injury

occurred in the course of labor, delivery or

resuscitation in the immediate post-delivery

period in the hospital due to oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in the hospital.

4. On July 25, 2011, I issued a Report

of my review. A true an accurate copy of my

Report is attached hereto. All of the

statements and opinions expressed therein are

true and correct based upon my review of the

medical records.

5. I have reviewed the medical records

for the above individual. The mother, Tasha

Hamlin was a 24 year old G4 P3003. Pregnancy

care was limited to only two prenatal clinic

visits. There were no known complications

during pregnancy. She presented to the

hospital at term in labor. Cervix was

dilated to 3 to 4 cms. Maternal anemia was

present on admission. Her hematocrit was

21.6%.

The newborn was not depressed. Apgar

scores were 8/9. A vigorous cry was noted at

birth with no resuscitation required. The

baby was transferred to the normal nursery.

The initial Newborn exam was normal.

Retractions and grunting were noted

about 5 to 6 hours after birth. About 10

hours after birth, the baby was transferred

to the NICU for evaluation of respiratory

distress and desaturation with feedings.

Evaluation identified swollen nasal

turbinates as the cause of the respiratory

distress. Arterial blood gas was normal with

a pH of 7.36 and a base excess of #-3.6. The

respiratory distress was managed by hood

oxygen. The baby never required bag and mask

ventilation and was not intubated. The nasal

swelling improved and the oxygen hood

discontinued after two days.

Laboratory testing showed a positive

coombs, consistent with ABO Isoimmunization.

The baby was not anemic. Phototherapy was

required for less than 24 hours. The baby

was discharged from the hospital in good

condition.

In summary, there was no fetal distress

during labor. The baby was not depressed at

birth and required no resuscitation during

the immediate post delivery period. Although

the mother had significant anemia, the level

of anemia was not sufficient to result in

oxygen deprivation to the fetus.

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.

9. Dr. Fernandez’s affidavit, also rendered in terms of a

"reasonable degree of medical probability" opined:

* * *

3. The Florida Birth-Related

Neurological Injury Compensation Association

(“NICA”) retained me as its expert in

pediatric neurology to conduct an independent

medical evaluation of the minor child BILLY

RAY SMITH, JR. in this matter. As part of my

evaluation I reviewed the medical records of

both the child and his mother TASHA ROBERTS,

f/k/a Tasha Hamblin. The purpose of my

review of the medical records and evaluation

of TASHA ROBERTS and BILLY RAY SMITH JR., was

to determine whether he suffers from an

injury which rendered him permanently and

substantially mentally and physically

impaired, and whether such injury is

consistent with any injury caused by oxygen

deprivation or mechanical injury occurring

during the course of labor, delivery, or the

immediate post-delivery period in the

hospital.

4. I evaluated BILLY RAY SMITH, Jr., on

September 20, 2011. A true and accurate copy

of my independent medical evaluation is

attached hereto. All of the statements and

opinions expressed therein are true and

correct based upon my review of the records,

the history taken, and my opinions from the

evaluation of the child.

5. Billy Ray’s mother, Ms. Roberts went

into labor on October 2, 2008 at 1400 hours.

She had not received prenatal care during the

final 3 months of the pregnancy but the

pregnancy was otherwise uncomplicated.

Billy Ray was delivered vaginally on

October 3rd at 0525 hours. Total duration of

labor was 15 1/2 hours. Resuscitation

consisted of tactile stimulation and bulb

suction. The Apgar scores were 8 and 9 at

one and five minutes (minus 2 for color at

one minute and minus 1 for color at five

minutes). Birth weight was 7 pounds 6

ounces, length 20.5 inches, head

circumference 34 cm. Billy Ray was admitted

to the regular nursery. On October 3rd at

0745 hours, his temperature was 98 degrees,

pulse rate 116, respiratory rate 50. At 1010

hours he was taken to his mother’s room for

infant teaching. At 1100 hours there were

chest retractions and nasal flaring. At 1330

hours O2 saturation was 92% by pulse oximetry

and at 1415 hours it was 84%. At 1515 hours

he was transferred to the neonatal intensive

care unit because of grunting, nasal flaring

and O2 saturations down to the 80 range. On

NICU admission he was alert and active. His

chest was clear, respiratory rate was 42,

blood pressure 76/51, O2 saturation 94%, tone

and activity were normal. There were swollen

nasal turbinates and mild respiratory

distress. The pH was 7.36, pCO2 of 39, pO2

of 87 and base excess minus 3.6. It was

stated that the O2 saturation dropped when he

was fed and that he fed slowly. On October

5th his suck reflex was described as being

poor and he required orogastic tube feedings.

In the discharge summary dated October 7,

2008 it was stated that he was doing well

clinically and his examination was normal.

Discharge diagnoses included: (1) Poor

feeding from October 6th through October 7th,

resolved and feeding well at discharge; (2)

hyperbilirubinemia with a high bilirubin of

13.4, down to 4.3 on October 5th; (3)

respiratory distress syndrome, resolved on

October 6th; and (4) rule out sepsis but

negative cultures.

On October 23, 2008, age 20 days, in a

scheduled well baby visit, diagnoses were:

(1) well infant and (2) tear duct

obstruction.

On September 8, 2010, age 23 months

there was a concern regarding his

development. He was not yet crawling or

walking. He could not feed himself with his

fingers. He cried frequently and Ms. Roberts

described muscle twitches while asleep. He

was not yet talking. Developmental delay was

noted in his physical examination. Tone and

strength were normal. His developmental age

was estimated to be less than 6 months.

On January 25, 2011, age 2 years 3

months, he was delayed and was not using his

right upper extremity as well as his left.

Body twitches were again described.

There is no evidence in the medical

record for oxygen deprivation or mechanical

trauma during labor, delivery or the

immediate post delivery period that explains

Billy Ray Smith’s delayed development. While

there is evidence for substantial cognitive

impairment it is not due to oxygen

deprivation or mechanical trauma during

labor, delivery or the immediate post

delivery period. While he is improving I

suspect substantial cognitive impairment will

be permanent. Motor function is also

improving and the ultimate outcome regarding

motor function is indeterminate at this time.

10. Petitioner did not file a timely response in

opposition to NICA's Motion for Summary Final Order, as

provided-for in Florida Administrative Code Rules 28-106.103 and

28-106.204, so on November 14, 2011, an Order to Show Cause was

entered, providing:

On October 26, 2011, Respondent served

a Motion for Summary Final Order. To date,

Petitioner has not responded to the motion.

Fla. Admin. Code R. 28-106.103 and 28-

106.204(4). Nevertheless, and

notwithstanding that they [sic] have been

accorded the opportunity to do so, it is

ORDERED that by November 28, 2011,

Petitioner shall show good cause in writing,

if any she can, why the relief requested by

Respondent should not be granted, thereby

disposing the case against Petitioner .

(emphasis added).

11. Petitioner filed no response in opposition.

Consequently, Petitioner has offered no evidence, by affidavit

or otherwise, to generate a genuine issue of material fact.

12. Given the record, it is undisputed that Billy Ray's

problems most likely were not acquired in the course of labor,

delivery, or resuscitation in the immediate postdelivery period

in the hospital, nor are they due to oxygen deprivation or

mechanical injury. Consequently, for reasons appearing more

fully in the Conclusions of Law, NICA's Motion for Summary Final

Order is well-founded. 3/

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

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

14. The Florida Birth-Related Neurological Injury

Compensation 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.

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

766.303(2), 766.305(1), and 766.313, 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 to submit relevant written information relating

to the issue of whether the injury is a birth-related

neurological injury." § 766.305(3), Fla. Stat.

16. 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(6), 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 766.031, Fla. Stat.

17. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

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 post-delivery

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.

18. 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

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).

19. Here, indisputably, Billy Ray's neurologic problems

were not ". . . caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in a

hospital." Consequently, given the provisions of section

766.302(2), Billy Ray does not qualify for coverage under the

Plan. See also Humana of Fla., Inc. v. McKaughan , 652 So. 2d

852, 859 (Fla. 2d 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-

Related Neurological Injury Comp. Ass'n v. McKaughan , 668 So. 2d

974, 979 (Fla. 1996); Fla. Birth-Related Neurological Injury

Comp. Ass'n v. Fla. Div. of Admin. Hearings , 686 So. 2d 1349

(Fla. 1997).

20. Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth-related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

§ 766.309(2), Fla. Stat. Such an order is subject to appellate

court review. § 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Statement of the Case and

Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by

Tasha Roberts, on behalf of and as parent and natural guardian

of Billy Ray Smith, Jr., a minor, is dismissed with prejudice.

DONE AND ORDERED this 7th day of December, 2011, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2011.

ENDNOTES

1/ Section 120.57(1)(h), Florida Statutes (2009), provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

2/ See , e.g. , Vero Beach Care Ctr v. Ricks , 476 So. 2d 262, 264

(Fla. 1st DCA 1985)("Lay testimony is legally insufficient to

support a finding of causation where the medical condition

involved is not readily observable."); Ackley v. Gen. Parcel

Servs. , 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non-observable medical

condition, such as a psychiatric illness, is essentially a

medical question."); Wausau Ins. Co. v. Tillman , 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which

the claimant alleged had resulted from the workplace incident

were not readily observable, he was obligated to present expert

medical evidence establishing that causal connection.").

3/ When, as here, the "moving party presents evidence to

support the claimed non-existence of a material issue, he . . .

[is] entitled to a summary judgment unless the opposing party

comes forward with some evidence which will change the result;

that is, evidence to generate an issue of a material fact. It

is not sufficient for an opposing party merely to assert that an

issue does exist." Turner Produce Co., Inc. v. Lake Shore

Growers Coop. Ass'n , 217 So. 2d 856, 861 (Fla. 4th DCA 1969).

Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d DCA 1980);

Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980).

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 Mail No. 7010 3090 0000 0717 2045)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(Certified Mail No. 7010 3090 0000 0717 2052)

Tasha Roberts

2952 Warfield Drive

Bartow, Florida 33830

(Certified Mail No. 7010 3090 0000 0717 2069)

Jill Hendry, ARNP

Lakeland OB/GYN

1729 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7010 3090 0000 0717 2076)

Lakeland Regional Medical Center

1324 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7010 3090 0000 0717 2083)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 3090 0000 0717 2090)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 2106)

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).