12-003367N Amanda And Walter Klee, On Behalf Of And As Parents And Natural Guardians Of Noah Klee, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 1, 2013.

Summary: Infant did not sustain 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMANDA AND WALTER KLEE, on )

behalf of and as parents and )

natural guardians of NOAH KLEE, )

a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3367N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Res pondent, )

)

and )

)

ORLANDO HEALTH, INC., d/b/a )

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES, EMMA FRITZ, )

M.D., AND TAMPA BAY WOMEN'S )

HEALTHCARE ALLIANCE, L.L.P, )

d/b/a TAMPA BAY WOMEN'S CARE, )

)

Intervenor s . )

)

SUMMARY FINAL ORDER

This cause came on for consideration upon the Renewed

Motion for Summary Final Order, filed on February 15, 2013, by

Respondent , Florida Birth - Related Neurological Injury

Compensation Association (NICA).

STATEMENT OF THE CASE

On October 11, 2012, Petitioners, Amanda Klee and

Walter Klee, on behalf of and as parents and natural guardians

of Noah Klee (Noah), a minor, filed a Petition under Protest

Pursuant to Florida Statut e Section 766.301 et seq. (Petition)

with the Division of Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition

named Stephen Snow, M.D., as the phys ician who provided

obstetric services at the birth of Noah at Orlando Health, Inc.,

d/b/a Winnie Palmer Hospital (Winnie Palmer Hospital) on

March 30, 2009.

DOAH served NICA and Winnie Palmer Hospital with copies of

the Petition on October 15, 2012. DOAH served Dr. Snow with a

copy of the Petition on December 26, 2012.

On October 18, 2012, Winnie Palmer Hospital filed a

Petition for Leave to Intervene, which was granted by Order

dated October 31, 2012. On December 19, 2012, the Petition for

Leave to Inter vene of Emma Fritz, M.D. and Tampa Bay Women's

Healthcare Alliance, L.L.P. , d/b/a Tampa Bay Women's Care , d/b/a

Woman's Care Florida was filed and was granted by Order dated

January 3, 2013.

On January 17, 2013, NICA filed a Motion for Summary Final

Order, stating that there were no dispute d facts on the issue of

compensability and that Noah had not sustained a birth - related

neurological injury and was not entitled to compensation under

the Plan. No one filed a written response to the motion.

The motion was heard by telephonic conference call on

February 6, 2013. The motion was denied on the basis that it

was not clear to the undersigned that the affidavit of

Dr. Donald Willis, which was attached to the motion ,

sufficiently addressed the issue of whether there had been an

injury during the period of resuscitation in the immediate

post delivery period. At the motion hearing, Petitioners

vigorously argued that the injury was not compensable under the

Plan and that the motion should be granted.

The final hea ring was scheduled for March 8, 2013, and an

Order of Prehearing Instructions was entered, requiring the

Intervenors to advise Petitioners and Respondent no later than

February 20, 2013, of any opinions of experts that they had

retained to testify at the f inal hearing. Petitioners were

required to advise Respondent and Intervenors by March 1, 2013,

of the opinions of any experts that Petitioners had retained to

testify at the final hearing.

By letter filed on January 20, 2013, Winnie Palmer Hospital

advise d that the experts retained by Winnie Palmer Hospital

opined that "Noah Klee did not sustain a 'birth - related

neurological injury' as defined in Florida Statute §766.302(2)."

By letter filed on February 26, 2013, Dr. Fritz and Tampa Bay

Women's Care discl osed that the experts they retained were "of

the opinion that Noah Klee did not sustain a birth - related

neurological injury as defined by §766.302(2) of the Florida

Statutes."

In responses to requests for admissions served by Winnie

Palmer Hospital, Petiti oners denied that "Noah Klee sustained an

injury to his brain caused by oxygen deprivation occurring in

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

post - delivery period in a hospital." In response to an

interrogatory, Petitioners resp onded that the denial was based

on the report of Dr. Willis.

On February 15, 2013, NICA filed a Renewed Motion for

Summary Final Order. The motion was served on the other parties

by email; thus, a response to the motion was due by February 22,

2013.

On February 27, 2013, Petitioner filed Petitioner's Motion

to Take Deposition of Donald Willis, M.D. The motion was heard

during a status conference held by telephone on February 28,

2013. At that time, counsel for Petitioners advised that she

did not have an expert who could testify that Noah had sustained

a birth - related neurological injury, but that she wanted to

question Dr. Willis on his opinion that Petitioner was not in

labor prior to the delivery of Noah. Because Petitioner did not

have an expert to opine that Noah sustained a birth - related

neurological injury to testify at the final hearing that was to

be held in eight days, the motion to take the deposition of

Dr. Willis was denied, and an oral ruling was made granting the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Noah Klee was born on March 30, 2009, at Winnie Palmer

Hospital in Orlando, Florida. Noah weighed 4,259 grams at

birth.

2. Donald Willis, M.D. (Dr. Willis), an obstetrician

specializing in maternal - fetal medicine, was request ed by NICA

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

affidavit dated February 14, 2013, Dr. Willis summarized his

findings as follows:

The purpose of my review of the medical

records of NOAH KLEE and AMANDA KLEE 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 deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - de livery period in the

Hospital.

* * *

In summary, the pregnancy was complicated by

insulin dependent diabetes with decreased

fetal movement and onset of severe

preeclampsia at 37 weeks gestational age.

Emergency Cesarean section was done for

susp ected fetal distress on the FHR monitor.

The patient was not in labor. The baby was

depressed at birth, but Apgar score was

normal by 5 minutes and the umbilical cord

blood gas pH was above 7. The baby did

suffer brain injury, but the above findings

sug gest the injury did not occur during

labor, delivery or resuscitation in the

immediate post - delivery in the Hospital.

The patient was not in labor. There was no

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

baby's brain during delivery or

resuscitation in the immediate post - delivery

in the Hospital.

As such, it is my opinion that there was no

oxygen deprivation or mechanical injury

during the course of labor, delivery or

resuscitation in the immediate post - deliver y

in the Hospital.

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

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis. The opinion of Dr. Willis that Noah did

not suffer a neurological injury due to oxygen depriva tion or

mechanical injury during labor, delivery, or immediate

postdelivery period is credited.

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 births

occurring on or after January 1, 1989. § 766.303(1), F la. 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. NIC A,

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

neurologica l 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, provided that the award is

approved by the administrative law jud ge to whom the claim has

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

NICA determines that the claim is not compensable, as it has in

the instant case, any 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.

8. In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon the

available evidence:

(a) Whether t he 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 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 ser vices 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 c ourse 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 - related neurological injury" means

i njury 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

occurrin g 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.

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

No ah 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. Therefore, Noah 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 Amanda Klee and

Walter Klee, on behalf of and as parents and natural guardians

of Noah Klee, is dismissed with prejudice.

DONE AND ORDERED this 1st 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 Parkwa y

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 1st day of March , 2013 .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Execut ive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0446)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 Nor th Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7012 1640 0000 7864 0453)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7012 164 0 0000 7864 0460)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 1640 0000 7864 0477)

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

(Certified Mail No. 7012 1640 0000 7864 0484)

Stephen Snow, M.D.

525 South Magnolia Avenue

Orlando, Florida 32801

(Certified Mail No. 7012 1640 0000 7864 0491)

Amie Rice, Investigation Manager

Consumer Services Unit

Depar tment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1640 0000 7864 0507 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahas see, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0514 )

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 Statu tes. 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 ren dition 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).