12-000854N Chanelle Huggins, Individually And As Parent Of Jamal White, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 5, 2013.

Summary: Infant did not sustain injury to brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHANELLE HUGGINS, individually )

and as parent of JAMAL WHITE, a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0854N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Unopposed Motion for Summary Final Order filed by Respondent,

Florida Birth - Related Neurologica l Injury Compensation

Association (NICA), on February 26, 2013 .

STATEMENT OF THE CASE

On March 8 , 2012, Petitioner, Chanelle Huggins ,

individually and as parent of Jamal White , a minor, filed a

Petition for Determination of Compensability Pursuant to Flor ida

Statute Section 766.301 et seg. [sic] (Petition) with the

Division of Administrative Hearings (DOAH) for compensation

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan). The Petition named Natalia Camacho, M.D., as the

physic ian providing obstetric services at the birth of Jamal at

St. Joseph Women and Children's Hospital in Tampa, Florida.

DOAH served NICA with a copy of the Petition on March 15,

2012. DOAH served copies of the Petition on St. Joseph Women

and Children's Hos pital and Dr. Camacho on March 16, 2012 .

On February 26, 2013, NICA filed an Unopposed Motion for

Summary Final Order, asserting that Jamal did not sustain a

"birth - related neurological injury" as that term is defined in

section 766.302(2), Florida Statu tes. NICA represented in the

motion that counsel for Petitioner, Ronald Gilbert, was

contacted on February 6, 2013, and had no objection to the

granting of the motion.

FINDINGS OF FACT

1. Jamal White was born on August 1 9, 2010 , at St. Joseph

Women and Children's Hospital in Tampa , Florida. Jamal weighed

3,530 grams at birth.

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

to review the medical records for Jamal and his mother. In an

affidavit dated February 22 , 2013, Dr. Willis opined the

following within a reasonable degree of medical probability:

In summary, delivery was complicated by a

shoulder dystocia. Cord blood pH was within

normal limits with pH of 7.08. The baby

suffered a brachial plexus injury. Hospital

course was otherwise n ormal.

Labor was complicated by a shoulder dystocia

that resulted in a difficult delivery and a

brachial plexus injury. However, the

shoulder dystocia did not result in brain

injury. There is no obstetrical event that

resulted in oxygen deprivation or m echanical

trauma to the brain or spinal cord during

labor, delivery, or the immediate

postdelivery period.

3. Jamal was examined and evaluated by Raymond J.

Fernandez , M.D. (Dr. Fernandez ), on May 30 , 2012. In an

affidavit dated February 25, 2013, Dr. F ernandez found the

following on his examination of Jamal :

Jamal has mild weakness of his left arm, but

in spite of this, he has good use of the

arm, proximally and distally. The left arm

weakness was due to a mechanical injury of

his left brachial plexus during delivery

that was complicated by shoulder dystocia.

There was no evidence for substantial and

permanent mental and physical impairment due

to brain or spinal cord injury due to lack

of oxygen or mechanical trauma.

4. A review of the file does not show any contrary

opinion, and Petitioner has no objection to the issuance of a

summary final order finding that the injury is not compensable

under Plan. The opinion of Dr. Willis that Jamal did not suffer

a neurological injury due to oxygen deprivation or mechanical

injury during labor, delivery, or resuscitation in the immediate

postdelivery period is credited. The opinion of Dr. Fernandez

that Jamal does not have a substantial and permanent mental and

physical impairment due to lack of oxygen or mech anical trauma

is credited.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

6 . The Plan was established by the Legislature "f or 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.

7 . The injured infant, her or his personal representative,

p arents, 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.

8 . If NICA determines that the i njury 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 with the provisions of chapter 120, Florida

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

9 . 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 t he

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

im paired, 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

resuscitat ion 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

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 76 6.31(1), Fla. Stat.

1 0 . 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 ge station 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 h ospital, which

renders the infant permanently and

substantially mentally and physically

impaired.

1 1 . The evidence, which is not refuted, established that

Jamal did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechan ical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital. Therefore, Jamal is not

eligible for benefits under the Plan .

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusion s

of Law, it is ORDERED that the Petition filed by

Chanelle Huggins, individually and as parent of Jamal White , is

dismissed with prejudice.

DONE AND ORDERED this 5th day of March , 2013 , 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 5th day of March , 2013 .

C OPIES FURNISHED :

(Via Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright and Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(Certified Mail No. 70 12 1640 0000 7864 0521)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0538)

Robert J. Grace, E squire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(Certified Mail No. 7012 1640 0000 7864 0545)

Am ie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, F lorida 32399 - 3275

(Certified Mail No. 7012 1640 0000 7864 0552)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 05 69)

St. Joseph's Women's Hospital

3030 West Dr. Martin Luther King, Jr. Boulevard

Tampa, Florida 33607

(Certified Mail No. 70 12 1640 0000 7864 0576 )

Natalia Camacho, M.D.

Bay Area Womens Care

1055 South Fort Harrison Avenue

Clearwater, Florida 337 56

(Certified Mail No. 70 12 1640 0000 7864 0583

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 proc eedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original n otice of a dministrative

a ppeal with the a gency c lerk of the Division of Administrative

Hearings within 30 days of rendition of the ord er 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).