11-006008N Lauren Smedley, On Behalf Of And As Parent And Natural Guardian Of Joshua Clement, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, May 10, 2012.

Summary: Child's ERB's palsy was not caused by loss of oxygen or mechanical trauma. No mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUREN SMEDLEY, on behalf of )

and as parent and natural )

guardian of JOSHUA CLEMENT, a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6008N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order, filed on May 3, 2012.

STATEMENT OF THE CASE

On November 21, 2011, Lauren Smedley, on behalf of and as

parent and natural guardian of Joshua Clement (Joshua), a minor,

filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. with the Division of Administrative

Hearings (DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The petition

named Mark Sargent, M.D. (Dr. Sar gent) and Holmes Regional

Medical Center (Holmes).

DOAH served the Florida Birth - Related Neurological Injury

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

November 23, 2011. Dr. Sargent was served a copy of the

petition on November 26, 20 11. DOAH sent a copy of the petition

to Holmes Regional Medical Center on November 23, 2011, and

received a receipt from the United States Postal Service on

November 30, 2011, showing receipt by Holmes.

On May 3, 2012, Respondent filed a Motion for Summar y Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Respondent represented in the

petition that Petitioner's counsel had been furnished with a

copy of the motion and had no objection to the entry of a final

summary order finding that the claim is not compensable.

FINDINGS OF FACT

1. Joshua Clement was born on January 2, 2012, at Holmes

Regional Medical Center. He weighed 4,173 grams.

2. Joshua's vagi nal birth was complicated by shoulder

dystocia. His Apgar scores were 5/9. Bag and mask ventilation

was required for less than 30 seconds after birth. Joshua

responded to the resuscitation and was taken to the nursery at

the hospital. His newborn hospi tal care was essentially

uneventful. Joshua was subsequently diagnosed with Erb's palsy.

3. Donald C. Willis, M.D. (Dr. Willis) , reviewed the

medical records for Joshua's delivery and opined that "[t]here

was no apparent obstetrical event that resulted i n loss of

oxygen or mechanical trauma to the baby's brain or spinal cord

during labor, delivery or the immediate post delivery period. "

4. On February 8, 2012, Michael S. Duchowny, M.D.

(Dr. Duchowny), evaluated Joshua. Upon examination of Joshua

and the pertinent medical records, Dr. Duchowny opined that :

Joshua's neurological examination reveals

findings consistent with a diagnosis of mild

Erb's palsy affecting primarily the C5/6 and

to a lesser degree C7 dermatomes. He has no

sensory abnormalities and his motor deficits

are mild and will likely improve with time.

There were no findings referable to motor

impairment arising from damage to the

central nervous system and certainly his

cognitive abilities are entirely intact.

I have reviewed records sent on January 23,

2012. The information supports the mother's

history and provides no information to

suggest neurologic injury to the brain or

spinal cord acquired due to oxygen

deprivation or mechanical injury.

I therefore do not believe that Joshua

shoul d be considered for compensation within

the NICA program. He has a mild motor

impairment which is the result of forces

acting outside of the brain and spinal cord.

Furthermore, his mental function is normal

for age.

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

have been no expert opinions filed that are contrary to the

opinions of either Dr. Willis or Dr. Duchowny. The opinions of

Dr. Willis and Dr. Duchowny that there was no neurologic injury

to the brain or spinal cord due to oxygen depri vation or

mechanical injury are credited. Additionally, Dr. Duchowny's

opinion that Joshua is not mentally impaired is credited.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties 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 Ja nuary 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 b irth - 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, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned administrative law

judge in accordance wi th 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 th e 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 a nd 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 servi ces 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 cou rse 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

a dministrative l aw j udge concludes that the "infant has

sustained a birth - related neurological in jury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1).

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

defined in section 766.302(2) as follows:

"Birth - related neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the cou rse of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired.

12. The evidence, which is not refuted, established that

Joshua 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 hospital, which renders him permanently

and physically im paired. Therefore, Joshua 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 for benefits filed by

Lauren Smedley, on behalf of and as parent and natu ral guardian

of Joshua Clement, is dismissed with prejudice.

DONE AND ORDERED this 10th day of May , 2012 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of May , 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 6472 )

David Ryan Best, Esquire

Best and Anderson, P.A.

Post Office Box 3306

Orlando, Florida 32802 - 3396

(Certified Mail No. 7011 1570 0001 1540 6489 )

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Of fice Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7011 1570 0001 1540 6496 )

Mark Sargent, M.D.

655 Anderson Court

Satellite Beach, Florida 32937 - 3950

(Certified Mail No. 7011 1570 0001 1540 6502 )

Holmes Regional Medical Center

1250 South Hickory Street

Melbourne, Florida 32901

(Certified Mail No. 7011 1570 0001 1540 6519 )

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 6526 )

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 6533 )

NOTICE OF RIG HT 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 prescr ibed 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).