12-001853N April Knill And Jeffery Knill, Individually And As Parents, Natural Guardians And Personal Representatives Of The Estate Of Delaney Knill vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, January 18, 2013.

Summary: Infant's injuries found to be compensable under the NICA Plan..

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APRIL KNILL AND JEFFERY KNILL, )

Individually and as Parents, )

Natural Guardians and Personal )

Representatives of the Estate )

of DELANEY KNILL , )

)

Petitioners , )

)

vs. ) Case No. 12 - 1853N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL I NJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ADRIENNE GEORGE, M.D., AZALEA )

WOMEN'S HEALTHCARE, P.A., AND )

TALLAHASSEE MEMORIAL )

HEALTHCARE, INC., )

)

Intervenors . )

)

SUMMARY FINAL ORDER ON COMPENSABILITY

This cause came on for consideration upon Petitioners'

Motion for Summary Final Order filed on November 16, 2012, by

April Knill and Jeff ery Knill, individually and as parents,

natural guardians, and personal representatives of the estate of

Delaney Knill (Delaney), deceased.

STATEMENT OF THE CASE

On May 17, 2012, Petitioners, filed a Petition for Benefits

Pursuant to Section 766.301 et seq., Florida Statutes (Petition)

with the Divis ion of Administrative Hearings (DOAH) for

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition

named Adrienne George, M.D., Azalea Women's Health Care as the

physician providing obstetr ical services at the birth of Delaney

at Tallahassee Memorial Hospital (TMH).

DOAH provided the Florida Birth - Related Neurological Injury

Compensation Association (NICA) and Dr. George with copies of

the Petition on May 23, 2012. TMH was provided a copy o f the

Petition by DOAH on May 24, 2012.

On July 6, 2012, Dr. George and Azalea Women's Healthcare,

P.A. (Azalea), filed a petition for leave to intervene, which

was granted by Order dated July 20, 2012. On November 1, 2012,

Tallahassee Memorial Healthcare , Inc. (TMH), filed an unopposed

petition to intervene, which was granted by Order dated

November 5, 2012.

On October 29, 2012, Petitioners filed Petitioners' Motion

for Summary Final Order. Petitioners filed Petitioners' Amended

Motion for Summary Final Order on November 16, 2012. NICA and

Intervenors filed responses, objecting to the language in

paragraph 6e. of the amended motion. The amended motion was

heard by telephonic conference call on December 17, 2012.

Petitioners withdrew the language in par agraph 6e. All parties

are in agreement that Delaney suffered a birth - related

neurological injury which resulted in her death.

FINDINGS OF FACT

1. Delaney Knill was born on April 10, 2009, at TMH in

Tallahassee, Florida. She weighed 3,744 grams at birt h.

2. Delaney was delivered by Cesarean section by

Dr. George. April Knill was diagnosed with uterine rupture,

which resulted in a loss of oxygen to Delaney's brain during

labor, delivery, and continuing into the immediate post delivery

period. The oxygen deprivation was severe, resulting in brain

death. Delaney was pronounced dead on April 14, 2009.

3. At the time of Delaney's birth, Dr. George was employed

by Azalea and was a participating physician as that term is

defined in section 766.302. Dr. George and Azalea provided

notice required by section 766.316 on August 28, 2008. TMH

provided notice as required by section 766.316 on April 1, 2009.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

5. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to bi rths

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

6. 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 th e issue of whether the injury is a birth - related

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

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

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

compensation to the claimant, provi ded that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat.

8. In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon the

avai lable 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

dep rivation 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 pa rticipating 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.

9 . The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - relate d 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.

1 0 . The evidence, which is no t refuted, established that

Delaney sustained a birth - related neurological injury, which

resulted in her death. Petitioners' claim is compensable under

the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the injuries sustained by Delaney Knill are

compensable under the NICA Plan.

It is further ORDERED that the parties are accorded 30 days

from the date of this Order to resolve, subject to approval of

the Administrative Law Judge, the amount and manner of payment

of an award to Petitioners ; the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees and costs; and the amount owing for expenses

previously incurred. If not resolved within such period, the

parties shall so advise the Administrative Law Judge, and a

hearing will be scheduled to resolve such issues. Once

resolved, an award will be made consistent with section 766.31.

It is further ORDERED that in the event Petitioners file an

election of remedies declining or rejecting NICA benefits, this

case will be dismissed and DOAH's file will be closed.

DONE AND ORDERED this 20th 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

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 H earings

this 20th 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

(Certifie d Mail No. 7012 1640 0000 7865 0926)

Lisa Magill Foran, Esquire

Hinkle and Foran

Suite 350

3500 Financial Plaza

Tallahassee, Florida 32312

(Certified Mail No. 7012 1640 0000 7865 0933)

M. Mark Bajalia, Esquire

Brennan, Manna and Diamond

800 West Monro e Street

Jacksonville, Florida 32202

(Certified Mail No. 7012 1640 0000 7865 0940)

Jesse F. Suber, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

Post Office Drawer 10479

Tallahassee, Florida 32317 - 4079

(Certified Mail No. 7012 1640 0000 7865 0957)

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell and Dunbar, P.A.

215 South Monroe Street, 2nd Floor

Post Office Box 10095

Tallahassee, Florida 32302

(Certified Mail No. 7012 1640 0000 7865 0964)

Amie Rice, Investigation Manager

Cons umer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1640 0000 7865 0971 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Dri ve, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7865 0988 )

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

7 66.311(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

Hearin gs 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 Fla. Birth - Related

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

(Fla. 1st DCA 1992).