11-004993N Natalie Ann Greenough, On Behalf Of And As Parent And Natural Guardian Of Aiden Curtis Gordon Morris, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 6, 2012.

Summary: Child did not sustain oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATALIE ANN GREENOUGH, on )

behalf of and as parent and )

natural guardian of AIDEN )

CURTIS GORDON MORRIS, a minor , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4993N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATIO N , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Bir th - Related

Neurological Injury Compensation Association (NICA) October 24,

2012.

STATEMENT OF THE CASE

On September 23, 2011, Petitioner, Natalie Ann Greenough,

on behalf of and as parent and natural guardian of Aiden Curtis

Gordon Morris (Aiden), a min or, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (Petition)

with the Division of Administrative Hearings (DOAH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). The Petitio n named Dean E.

Altenhofen, M.D. (Dr. Altenhofen), and Sacred Heart Hospital.

The case was originally assigned to Administrative Law

Judge Ella Jane P. Davis, but was reassigned to Administrative

Law Judge Susan Belyeu Kirkland due to Judge Davis' retireme nt.

DOAH served NICA and Dr. Altenhofen with copies of the

Petition on September 28, 2011. On February 6, 2012, DOAH

served Sacred Heart Hospital with a copy of the Petition. As of

the date of this Summary Final Order, neither Sacred Heart

Hospital nor D r. Altenhofen has petitioned to intervene in this

proceeding.

On October 24, 2012, NICA filed a Motion for Summary Final

Order, asserting that Aiden did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florid a Statutes. No response was filed to the

motion.

On November 14, 2012, an Order to Show Cause , was issued.

Petitioner was ordered to show cause on or before November 30,

2012, why Respondent's Motion for Summary Final Order should not

be granted. To dat e, Petitioner has filed no response.

The two - day final hearing is scheduled to commence on

December 17, 2012, in Pensacola, Florida.

FINDINGS OF FACT

1. Aiden Curtis Gordon Morris was born on September 15,

2011, at Sacred Heart Hospital in Pensacola, Fl orida. He

weighed 3,300 grams at birth.

2. NICA requested that Donald Willis, M.D., an

obstetrician specializing in maternal - fetal medicine to review

the medical records of Ms. Greenough and Aiden. The purpose of

his review was to determine whether an i njury 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. Dr. Willis reviewed the records and made

the following findings, which he set forth in an affidavit

attached to the Motion for Summary Final Order.

According to the medical records, the

mother Natalie Greenough was a 16 year old

G1. She presented to the hospital at 38

weeks gestational age in labor. Her cervix

was dilated 5 to 6 cms on adm ission.

Amniotic membranes were ruptured with clear

fluid.

The fetal heart rate (FHR) monitor on

admission shows a reactive heart rate

pattern with a normal baseline rate of 120

to 130 bpm. Some variable FHR decelerations

and episodes of reduced FHR var iability are

noted during labor. An abnormal FHR pattern

with reduced heart rate variability and

variable decelerations continued for about

90 minutes prior to delivery. Severe

variable decelerations with a drop in FHR to

<60 bpm="" occurred="" about="" 40="" minute="" s="">

delivery.

Cesarean delivery was done for the non -

reassuring FHR pattern. Birth weight was

3,300 grams. The newborn was depressed with

Apgar scores of 1/4/6. Umbilical cord blood

gas was abnormal with a reported pH of 6.99.

Initial resuscitatio n included bag and mask

ventilation with a good improvement in heart

rate. Despite the improvement in heart

rate, poor perfusion and respiratory

depression continued. Intubation for

mechanical ventilation was required.

Admission physical exam in the NIC U

describes the baby as lethargic with poor

perfusion of the extremities and on the

ventilator for respiratory depression. Body

cooling was initiated due to hypoxic

ischemic encephalopathy (HIE).

The newborn hospital course was

complicated. Multisystem failure occurred.

Poor perfusion required intravenous fluid

boluses. Respiratory depression was present

at birth and required intubation and

mechanical ventilation. Disseminated

intravascular coagulation manifest with

hematuria and required fresh frozen plasma.

Platelet count dropped to 91,000. Seizure

activity was noted on DOL 2. EEG was

consistent with mild HIE. MRI on DOL 7 was

reported as normal.

In summary, labor was complicated by

fetal distress, requiring Cesarean delivery.

The newborn was d epressed. Umbilical cord

blood gas showed significant acidosis with a

pH or 6.99. The baby was lethargic, had

poor perfusion and respiratory depression at

birth. Hospital course was complicated by

multisystem organ failure. Although the MRI

on DOL 7 wa s reported as normal, EEG was

consistent with HIE.

3. Dr. Willis opined that there was an apparent

obstetrical event that resulted in loss of oxygen to the baby's

brain during labor, delivery, and continuing into the immediate

post delivery period, which resulted in brain injury. He could

not opine on the severity of the injury.

4 . NICA requested Raymond J. Fernandez, M.D.

(Dr. Fernandez), a pediatric neurologist, to review the medical

records for Aiden and to conduct an independent medical

examination of Aiden. Dr. Fernandez examined Aiden on August 8,

2012. He made the following findings, which he set forth in an

affidavit attached to the Motion for Summary Final Order, based

on the medical records and a history from Ms. Greenough.

Aiden's mother, Ms . Natalie Greenough,

was admitted to the hospital on

September 15, 2011, in active labor. The

expected date of delivery was September 24,

2011. She received adequate prenatal care

and the pregnancy was uncomplicated.

Mrs. Greenough was 16 years old duri ng the

pregnancy. Her blood pressure on admission

was 110/50 and pulse rate was 80. There was

arrest of descent during labor and a

nonreassuring fetal heartrate with

bradycardia detected, requiring delivery by

Cesarean section. The Apgar scores were 1,

4, and 6 and the umbilical artery cord blood

pH was 6.9. Aiden required intubation in

the delivery room. In the initial newborn

examination he was described as having

decreased movement and tone, poor perfusion

and apnea.

Upon admission to the Neonatal Intensive

Care Unit, birth weight was 3,300 grams,

length 52 centimeters, head circumference 36

centimeters, temperature 101, heart rate 154

and blood pressure was 55/22. He was

lethargic and movement was reduced. He

aroused during the examination. The Moro

reflex was present. Sucking reflex was

present, but diminished. Gag reflex was

present as were plantar and palmar grasping

reflexes. He was intubated and receiv ing

assisted ventilation. He met clinical and

neurological criteria for whole body

cool ing, which was initiated promptly

(criteria for whole body cooling included

periodic hypotohnia, decreased activity and

lethargy).

There was reduced urine output and

hematuria due to urethral trauma during

insertion of a Foley catheter. Seizures

were a c oncern on September 16th, treated

with Phenobarbital. There was seizure

recurrence on September 18th and

Phenobarbital was continued. On

September 21, 2011, muscle tone and activity

were decreased, but improving. Body

rewarming began on September 21, 20 11.

Cranial ultrasound on September 15th was

normal and MRI of the brain on September 21,

2011 was normal also. Specifically, there

were no areas of restricted diffusion. An

EEG on September 20, 2011, was abnormal due

to a somewhat poorly organized back ground,

consistent with a mild encephalopathy, but

no seizures. In the discharge summary dated

September 25, 2011, it was stated that

muscle tone and activity were normal.

MRI of the brain at four months of age

was reportedly normal.

* * *

Foll owing discharge, he was healthy. He

displayed some periodic eye rolling

movements for which he was examined by his

Neurologist who performed a brain scan and

an EEG that he stated were normal. These

episodes have nor recurred and he has not

required anti epileptic drug treatment since

he was in the nursery.

Initially, it was felt that Aiden had

mild cerebral palsy because of tightness in

his arms, but this has resolved. His

neurologist in the Pensacola area thought

that his development and his physical

e xamination were normal at the time of the

last visit and he did not feel that a return

appointment was necessary.

Aiden was evaluated by the Early Steps

Development Program and he has been enrolled

in physical therapy. He has been able to

shift himself t o the sitting position for

several weeks. He crawls or creeps and

about a month ago began pulling himself to

the standing position. He is able to stand

for a few seconds independently, but does

not yet take independent steps. He cruises

along furniture. Aiden was described a s

being alert, attentive, and inquisitive. He

babbles, imitates sound, says "ma - ma" and

"da - da" meaningfully and says and waves

"bye - bye" meaningfully. He plays pat - a -

cake. He uses both hands well. Picks up

small objects with thu mb and index finger,

feeds himself and claps his hands in play.

5 . After performing a physical examination on Aiden on

August 8, 2012, Dr. Fernandez made the following findings:

PHYSICAL EXAMINATION: Head circumference

47 centimeters (50th percentile). Weight

last week was 20 pounds 13 ounces. No

dysmorphic features. No skin abnormalities

of neurological significance. Funduscopic

examination was limited, but grossly normal.

Heart, lung and abdomen were normal. No

orthopedic abnormalities. Skull wa s

symmetric. There were no abnormalities over

the spine.

Aiden was alert. Attentive and

inquisitive. He played appropriately with

toys and spinning and rotating parts that he

manipulated well. He consistently turned

when his name was called. He babbl ed and

said and waved "bye - bye" when leaving the

room. Vision and hearing were grossly

normal. Eyes were well aligned and eye

movement was full, horizontally and

vertically, without significant nystagmus.

There was no drooling.

Muscle tone was normal, proximally and

distally. He shifted himself to sitting and

crawling positions and pulled to stand. He

cruised along furniture and took steps with

hands held. He had good sitting balance and

shifted position quickly and in well

coordinated fashion. He m oved about either

in the crawling or sitting position by

pushing with his arms or either leg. He did

not yet crawl in reciprocal fashion. Muscle

tone was normal and he moved all limbs well.

There were no focal or lateralized motor

abnormalities. No tre mor or involuntary

movement. He had well - coordinated pincer

grasp, bilaterally, and transferred smoothly

from hand to hand. He held one block in

each hand and banged them together. He

stretched his arms and leaned forward for

toys that were otherwise ou t of reach. He

looked for objects that were hidden from

view. Deep tendon reflexes were 2. There

were no pathological reflexes elicted.

6 . Based on his review of the medical records, discussions

with Ms. Greenough, and a physical examination of Aiden ,

Dr. Fernandez opined that there was no evidence of brain injury

due to oxygen deprivation during labor and delivery resulting in

substantial and permanent mental or motor impairment. He felt

that Aiden should continue to improve in all areas and di d not

anticipate that in the future that there would be evidence of

substantial mental and motor impairment due to oxygen

deprivation during labor and delivery.

7 . A review of the file in this case reveals that there

have been no expert opinions filed tha t are contrary to the

opinion of Dr. Fernandez. The opinion of Dr. Fernandez that

Aiden is not substantially and permanently mentally and

physically impaired is credited.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

jurisdiction ove r the parties to and the subject matter of these

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

9 . 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.

10 . 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

wi th 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 relati ng to the issue of whether the injury is a

birth - related neurological injury." § 766.305(4), Fla. Stat.

11 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

compensation to the claima nt, 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 assig ned administrative law

judge in accordance with the provisions of chapter 120, Florida

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

1 2 . 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 postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supe rvised 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.

1 3 . 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

ox ygen 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.

1 4 . The evide nce, which is not refuted, established that

Aiden is not permanently and substantially mentally and

physically impaired. Therefore, Aiden is not eligible for

benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED :

1. T he Petition filed by Natalie Ann Greenough, on behalf

of and as parent and natural guardian of, Aiden Curtis Gordon

Morris is dismissed with prejudice.

2. The final hearing scheduled for December 17 and 18,

2012, is cancelled .

DONE AND ORDERED this 6th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 6th day of December , 2012 .

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. 7011 1570 0001 1540 6724)

Natalie Ann Greenough

6200 Lucille Street

Molino, Florida 32577

(Cert ified Mail No. 7011 1570 0001 1540 6731)

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. 7011 1570 0001 1540 6748)

Sacred Heart Hospit al

Attention Risk Management

5151 North Ninth Avenue

Pensacola, Florida 32504

(Certified Mail No. 7011 1570 0001 1540 6755 )

Dean E. Altenhofen, M.D.

6110 North Davis Highway

Pensacola, Florida 32504 - 6950

(Certified Mail No. 7011 1570 0001 1540 6762 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 6779 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6786 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the Distr ict 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 Fl a. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).