12-001713N Kenya Sutton, Individually And As Parent Of Ashanti Stephens, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 17, 2013.

Summary: Child did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENYA SUTTON, individually and )

as parent of ASHANTI STEPHENS, )

a minor , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1713N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

BAYFRONT MEDICAL CENT ER, INC., )

AND RICHARD C. BROWN, M.D., )

)

Intervenors . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Unopp osed Motion for Summary Final Order filed by Respondent,

Florida Birth - Related Neurological Injury Compensation

Association (NICA), on May 7, 2013.

STATEMENT OF THE CASE

On May 31, 2012, Petitioner, Kenya Sutton, individually and

as parent of A s hanti Step hens (Ashanti), a minor, filed a

Petition for Determination of Compensability Pursuant to Florida

Statute Section 766.301 - 766.316 (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - R elated Neurological

Injury Compensation Plan (Plan).

The Petition named Richard C. Brown, M.D., as the physician

providing obstetric services at the birth of Ashanti at Bayfront

Medical Center in St. Petersburg, Florida.

DOAH served NICA with a copy of t he Petition on June 1,

2012. DOAH served Bayfront Medical Center on June 4, 2012. On

June 14, 2012, Bayfront Medical Center and Dr. Brown filed a

petition to intervene, which was granted by Order dated June 27,

2012.

NICA filed an Unopposed Motion for Summary Final Order,

asserting that Ashanti did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. NICA represented in the motion

that Petitioner and Intervenors have no objection to the gra nting

of the motion.

FINDINGS OF FACT

1. Ashanti Stephens was born on December 27, 2010, at

Bayfront Medical Center in St. Petersburg, Florida. Ashanti

weighed 3,570 grams at birth.

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

to revie w the medical records for Ashanti. In an affidavit dated

May 1, 2013, Dr. Willis opined that "[t]here was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the baby's brain or spinal cord during labor, delivery,

or the immediate post delivery period."

3. Raymond J. Fernandez, M.D., a pediatric neurologist, was

retained by NICA to perform an independent medical examination of

Ashanti. He did so on September 18, 2012. In an affidavit dated

May 3, 2013, Dr. Fernandez op ined the following within a

reasonable degree of medical probability:

Ashanti's left upper extremity weakness is

due to mechanical injury of the left brachial

plexus and cervical nerve roots during

delivery, but there is no evidence of mental

or physical i mpairment due to brain or spinal

cord injury due to oxygen deprivation or

mechanical injury.

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

to those of Dr. Willis and Dr. Fernandez, and Petitioner and

Intervenors have no objection to the iss uance of a summary final

order finding that the injury is not compensable under Plan. The

opinions of Dr. Willis and Dr. Fernandez that Ashanti did not

suffer a neurological injury due to oxygen deprivation or

mechanical injury during labor, delivery, or the immediate

post - delivery period are 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 establi shed 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.

7. 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 f rom 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 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. § 76 6.305(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 claim ant

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 labo r, 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 postdeliver y 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.

10. 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 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.

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

Ashanti 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

post - delivery period in a hospital. Therefore, Ashanti 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 Kenya Sutton,

individually and as parent of Ashanti Stephens, is dismissed with

prejudice.

DONE AND ORDERED this 17th day of May , 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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May , 2013 .

COPIES 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. 7012 3050 0000 1251 9590)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 125 1 9606)

David S. Nelson, Esquire

Barr, Murman and Tonell, P.A.

Suite 1700

201 East Kennedy Boulevard

Tampa, Florida 33602

(Certified Mail No. 7012 3050 0000 1251 9613)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tamp a, Florida 33613

(Certified Mail No. 7012 3050 0000 1251 9620)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1251 9637 )

E lizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8356 9804 )

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 D istrict 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).