11-005439N Misty Mobley And Tavaris Sanders, Individually And As Parents Of Tavarion Sanders, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 14, 2012.

Summary: Child did not sustain a birth-related neurological injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MISTY MOBLEY AND TAVARIS )

SANDERS, individually and as )

parents of TAVARION SANDERS, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 5439N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Responden t, )

)

and )

)

HOMESTEAD HOSPITAL, INC., d/b/a )

HOMESTEAD HOSPITAL, )

)

Intervenor . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideratio n upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on May 3,

2012.

STATEMENT OF THE CASE

On October 19, 2011, Petitioners, Misty Mobley and

Tavaris Sanders, individually and as parent s of Tavarion Sanders

(Tavarion), a minor, filed a Petition for Determination of

Compensability Pursuant to Florida Statute Section 766.301 et

seg. (Petition) with the Division of Administrative Hearings

(DOAH) for compensation under the Flori da Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition

named Mohamad Shahmohamady, M.D., and Homestead Hospital.

DOAH served NICA with a copy of the Petition on October 26,

2011. DOAH served copies of the Petition on Homestead Hospit al

and Dr. Shahmohamady on October 27, 2011. As of the date of

this Summary Final Order of Dismissal, Dr. Shahmohamady has not

petitioned to intervene in this proceeding. On November 23,

2011, Homestead Hospital, Inc. , d/b/a Homestead Hospital filed a

Pe tition for Leave to Intervene. By Order dated December 6,

2011, Homestead Hospital was granted leave to intervene.

On May 3, 2012, NICA filed a Motion for Summary Final

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

neurological injury" a s that term is defined in section

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

motion.

On May 16, 2012, an Order to Show Cause was entered

requiring Petitioners to show cause why the Motion for Summary

Final Order should not be granted. On May 16, 2012, Homestead

Hospital filed Intervenor, Homestead Hospital, Inc. , d/b/a

Homestead Hospital's Motion for Extension of Time to Respond to

NICA's Motion for Summary Order. The motion was granted, and an

Order was entered on May 25, 2012, extendin g the time for

Homestead Hospital to respond to the Motion for Summary Final

Order to July 25, 2012. As of the date of this Summary Final

Order of Dismissal, Homestead Hospital has not filed a response

to the Motion for Summary Final Order.

FINDINGS OF FA CT

1. Tavarion Sanders was born on September 16, 2009, at

Homestead Hospital in Homestead, Florida. Tavarion weighed

2,755 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA

to review the medical records for Tavarion. In an aff idavit

dated April 27, 2012, Dr. Willis stated:

The Florida Birth - Related Neurological

Injury Compensation Association retained me

as an expert in maternal - fetal medicine to

review the medical records from both

Tavarion Sanders and his mother,

Misty Mobley . The purpose of my review of

the medical records of Tavarion Sanders and

Misty Mobley 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 depriv ation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate post

delivery period in the Hospital.

* * *

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery or in the immediate post delivery

period.

As such, it is my opinion that there was no

oxygen deprivation or mechanical injury in

the course of labor, delivery or

resuscitation in the immediate post - delivery

period i n the Hospital. Further, in that

there was no oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediately post - delivery period in the

Hospital, th en accordingly, there was no

causal event which w ould have rendered

Tavarion Sanders permanently and

substantially mentally and physically

impaired as a result of same .

3. Tavarion was examined and evaluated by Michael S.

Duchowny, M.D. (Dr. Duchowny), on January 25, 2012.

Dr. Duchowny found the follo wing on his examination of Tavarion:

NEUROLOGIC EXAMINATION reveals an irritable

infant who is prone to temper tantrums and

difficult to examine for this reason.

Relatively minor perturbations cause

Tavarion to cry and kick, and the parents

are continuall y soothing him in order to

complete testing. He clearly recognizes and

understands his environment and does show

curiosity for novel stimuli. However, his

attention span remains fixed for just a few

seconds after which he begins crying and

fidgeting. He understood occasional simple

commands but showed no evidence of

expressive communication by either verbal or

nonverbal means. Cranial nerve examination

reveals full visual fields to direct

confrontation testing. The pupils are 3 mm

and react briskly to direct and consensually

presented light. Funduscopic examination

w a s felt to be suboptimal due to poor

cooperation but was grossly normal. There

remains a subtle alternating esotropia

bilaterally. The extraocular movements are

otherwise full and there i s no nystagmus.

There are no facial asymmetries. The uvula

is midline. The pharyngeal folds are

symmetric. The tongue movements are poorly

coordinated. Motor examination reveals a

generalized static hypotonia with slight

generalized hypertonicity with activity.

There is no focal weakness, fasciculation or

atrophy. Tavarion walks across the room in

a stable fashion and his arm swing is

symmetric. There is slight scissoring of

the lower extremities when he walks. Deep

tendon reflexes are 1 - 2 bilater ally and

both plantar responses are downgoing.

Tavarion withdraws all extremities to

stimulation in a symmetric fashion. Sensory

examination is intact to withdrawal of all

extremities to stimulation. Neurovascular

examination reveals no cervical, crania l, or

ocular bruits and no temperature or pulse

asymmetries.

A review of Tavarion's medical records

confirms that he was born by cesarean

section at Homestead Hospital. His birth

weight was 2755 g m and he was judged to be

at 37 weeks gestation. Apgar sc ores were 6

and 9 and Tavarion breathed spontaneously

and did not require ventilator y support. He

never experienced seizures. A n ultrasound

examination of the brain performed on

September 17 was normal. Bilateral

cephalohematomas were recognized and tre ated

conservatively.

Tavarion's neurological examination today

reveals findings consistent with a

substantial mental impairment. He has a

moderate motor impairment which I suspect

will improve over time and I do not believe

that his motor deficit ultimat ely will prove

to be substantial in nature. Furthermore,

the medical records do not provide

supporting evidence that Tavarion's

neurological problems were acquired

intrapartum during labor and delivery due to

either asphyxia or mechanical injury. I

would however like to review the MRI and CT

scans before making a final recommendation.

4. By letter dated April 19, 2012, Dr. Duchowny opined:

I have had an opportunity to review an MR

study on Tavarion. This study does not

reveal findings to suggest hypoxi c ischemic

encephalopathy. It therefore provides

further corroboration of the opinion that

Tavarion should not be considered her [sic]

compensation with the NICA Program.

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

have been no expert opinio ns filed that are contrary to the

opinions of Dr. Willis and Dr. Duchowny. The opinions of

Dr. Willis and Dr. Duchowny that Tavarion did not suffer a

neurological injury due to oxygen deprivation or mechanical

injury during labor, delivery, or immediate p ost - delivery period

are credited. Additionally, Dr. Duchowny's opinion that

Tavarion does not have a substantial and permanent physical

impairment is credited.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has

jurisdiction over the parti es to and the subject matter of these

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

7 . 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.

8 . 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.

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

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

compensation to the claimant, pr ovided 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 ad ministrative law

judge in accordance with the provisions of chapter 120, Florida

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

10 . 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 ox ygen

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

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

s ustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

1 1 . The term "birth - related neurological injury" is

defined in section 766.302(2) as follows:

"Bir th - 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 de privation 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 2 . The evidence, wh ich is not refuted, established that

Tavarion did not sustain an injury 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

postdelivery period in a hos pital. Therefore, Tavarion is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Misty Mobley

and Tavaris Sanders, individually and as parents of

Tavarion Sanders, is dismissed with prejudice.

DONE AND ORDERED this 14th day of August, 2012, in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

Th e 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 14th day of August , 2012 .

COPIES FURNISHED :

(Vi a Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0001 1540 6908)

Scott Edward Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon and Bonner, P.A.

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

(Certified Mail No. 7011 1570 0001 1540 6915)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher P lace, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6922)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0001 1540 6939)

Mohamad Shah mohamady, M.D.

975 Baptist Way, Suite 102

Homestead, Florida 33033

(Certified Mail No. 7011 1570 0001 1540 6946)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 32 75

(Certified Mail No. 7011 1570 0001 1540 6953 )

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 6960 )

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 Proce dure. 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 pr escribed 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).