12-003850N Tatiana C. Stowers And Robert M. Stowers, On Behalf Of And As Natural Guardians Of Kayla Mackenzi Stowers, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 9, 2014.

Summary: Infant's mental and motor impairements are not due to oxygen deprivation or mechanical injury of the brain or spinal cord during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TATIANA C. STOWERS AND ROBERT M.

STOWERS, on behalf of and as

natural guardians of KAYLA

MACKENZI E STOWERS, a minor ,

Petitioners ,

vs. Case No. 12 - 3850N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION ,

Respondent,

and

ERIC J. EDELENBOS, D.O., NORTH

FLORIDA OBSTETRICAL AND

GYNECOLOGICAL ASSOCIATES, P.A.,

AND ORANGE PARK MEDICAL CENTER,

INC.,

Intervenors .

/

FINAL ORDER

Pursuant to an Order dated October 29, 2013, the parties

were granted leave to submit a stipulated factual record and

written argument in lieu of a contested hearing in this case.

The stipulated record was filed on November 27, 2013.

APPEARANCES

For Petitioners: P. Scott Russell, Esquire

Suite 601

1300 Riverplace Boulevard

Jacksonville, Florida 32207

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna and Diamond

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenors Eric J. Edelenbos, D.O., and North Florida

Obstetrical and Gynecological Associates, P.A.:

Rogelio Jose Fontela, Esquire

Dennis, Jackson, Martin, and Fontela, P.A.

1591 Summit Lake Drive, Suite 200

Tallahassee, Florida 32317

For Intervenor Orange Park Medical Ce nter, Inc.:

Charles Thomas Shad, Esquire

Travase Erickson, Esquire

Saalfield, Shad, Stokes, Inclan,

Stoudmire & Stone, P.A.

245 Riverside Avenu e, Suite 400

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this case is whether Kayla Mackenzie Stowers

sustained a birth - related neurological injury.

PRELIMINARY STATEMENT

On November 26, 2012, Petitioners, Tatian a C. Stowers and

Robert M. Stowers, on behalf of and as natural guardians of

Kayla Mackenzie Stowers (Kayla), a minor child, filed a Petition

for Benefits Pursuant to Florida Statute Section 766.305 et seq.

(Petition) with the Division of Administrative He arings (DOAH).

Petitioners allege that Kayla Ðsuffered a birth - related

neurological brain and/or spinal cord injuryÑ and that Ð[s]he was

diagnosed with a cerebral palsy, in or about March 2012, and has

now experienced and continues to experience significa nt

developmental delays.Ñ

The Petition alleged that Eric J. Edelenbos, M.D., provided

obstetric services at the birth of Kayla, and that Kayla was born

at Orange Park Medical Center in Orlando, Florida. DOAH served

the Birth - Related Neurological Injury Co mpensation Association

(Association), Dr. Edelenbos, and Orange Park Medical Center with

copies of the Petition.

On January 17, 2013, Dr. Edelenbos and North Florida

Obstetrical and Gynecological Associates, P.A. , filed a Petition

to Intervene. The petit ion for leave to intervene was granted by

Order dated February 5, 2013. On February 5, 2013, Orange Park

Medical Center, Inc. , filed a Petition for Leave to Intervene,

which was granted by Order dated February 19, 2013.

On October 25, 2013, the parties fi led a Joint Response to

Order and stated:

The parties have met and conferred and, at

this time, do not request an administrative

hearing. Because the parties agree as to the

evidence and records to be submitted, the

parties respectfully request that

Petit ionersÓ claim be resolved pursuant to a

stipulated factual record, and that the

parties be allowed to submit written

arguments or proposed final orders in lieu of

a contested hearing.

On October 29, 2013, an Order was entered granting the

parties leave to submit a stipulated record in lieu of a live

administrative hearing and to submit memoranda of law or proposed

final orders. On November 27, 2013, the parties submitted a

stipulated record, consisting of Joint Exhibits A through S . On

December 5, 2013, Petitioners filed PetitionersÓ Memorandum in

Support of Petition for Benefits Pursuant to Chapter 766, Florida

Statutes. On December 6, 2013, Respondent filed its proposed

final order on compensability. The Intervenors did not file any

memoranda or propo sed final orders.

FINDINGS OF FACT

1. Tatiana C. Stowers and Robert M. Stowers are the natural

parents of Kayla Mackenzie Stowers, a minor.

2. Kayla was born a live infant on October 12, 2009, at

Orange Park Medical Center, a licensed hospital located i n Orange

Park Florida. Eric J. Edelenbos , M.D., provided obstetric

services at the birth of Kayla , and at all times material to this

proceeding , was a Ðparticipating physicianÑ as defined in section

766.302(7), Florida Statutes.

3. Kayla weighed 3,078 gr ams at birth.

4. On October 12, 2009, Mrs. Stowers, who was at full term,

was admitted to Orange Park Medical Center at 6:28 a.m. , for

induction of labor. Her prenatal course had been uneventful.

5. The babyÓs baseline fetal heart rate on admission was

150 bpm, and the fetal heart rate monitor did not show any fetal

distress during labor or delivery.

6. At 8:05 a.m. , Pitocin was administered to augment

Mrs. StowersÓ labor. During her labor, the dosage of Pitocin was

increased. At 1:48 p.m., Dr. Edele nbos ruptured Mrs. StowersÓ

membranes, and the medical records indicate that the amniotic

fluid was clear and odorless.

7. At 9:40 p.m., Mrs. Stowers delivered Kayla by normal

spontaneous vaginal delivery.

8. At birth, KaylaÓs mouth and nose were suction ed, but no

other resuscitative measures were needed or administered in the

delivery room. No complications were noted at her birth, and she

was in stable condition. KaylaÓs Apgar scores at one and five

minutes were eight and nine respectively.

9. At 10: 30 p.m., Kayla was noted to have respiratory

distress. Her left nasal passage was tight and her right nare

was patent. She was transferred to the hospitalÓs neonatal

intensive care unit.

10. On October 13, 2009, at 12:05 a.m., Kayla was placed on

a nasa l cannula and an IV was started. Antibiotics were given at

12:20 p.m. , and Neo - Synephrine was administered for nasal

stuffiness. By 3:45 p.m. , on October 13, 2009, Kayla had

increased retractions and grunting and was placed on neonatal

CPAP at 100% oxyge n. During the evening of October 13, 2009,

Kayla experienced two apneic episodes with jerking movements of

her arms and leg.

11. On October 14, 2009, Kayla was on CPAP for four hours

and then intubated due to the apneic episodes the previous

evening.

1 2. A chest X - ray taken of Kayla on October 13, 2009, was

within normal limits. On October 14, 2009, Kayla had a normal

neonatal head ultrasound.

13. On October 15, 2009, it was noted that Kayla had not

experienced any abnormal movements for 24 hours. A t 6:00 p.m. ,

on October 17, 2009, Kayla experienced periodic episodes of

jerking of hands and legs, in addition to the arching of her

back.

14. On October 18, 2009, Kayla had jerky movements of all

extremities, including her eyes rolling back. The move ments

stopped with restraint, but were not typical seizure - like

movements.

15. On October 19, 2009, due to suspected seizures,

respiratory distress , and suspected sepsis, Kayla was transferred

from Orange Park Medical Center to Wolfson ChildrenÓs Hospital

for further workup. An EEG performed on Kayla on October 20,

2009, was within normal limits. A follow - up video EEG on

November 4, 2009, was normal.

16. An MRI was done on Kayla on October 21, 2009, and the

followings findings were reported:

Moderate im age degradation secondary to

patientÓs motions. Normal variant cavum

septus pellucidum and cavas vergae.

Prominent extra - axial fluid at the anterior

aspect of both middle fossae, and with

ÒapparentÓ suboptimal opoerculation of the

Sylvian fissures ? clini cal signicance.

Followup US may be helpful for further

evaluation.

Remainder of the examination appears

otherwise unremarkable.

KaylaÓs attending physician at Wolfson ChildrenÓs Hospital

indicated in her discharge summary dated November 10, 2009, that

the MRI was normal.

17. On December 9, 2009, Kayla was taken to the emergency

room at Wolfson ChildrenÓs Hospital. While in the emergency

room, Kayla experienced apneic episodes that required intubation.

She was admitted to Wolfson ChildrenÓs Hospital.

18. While admitted to Wolfson Children's Hospital, Kayla

had abnormal movements that were nonspecific and not due to

seizures. Kayla was discharged on December 22, 2009. In his

discharge summary, Clifford David, M.D., summarized the hospital

course as it related to the seizure - like activities.

Neurology - wise, the patient was again worked

up for this possible seizure - like activity,

which was possibly due to reflux. This

workup included another EEG and MRI. The CT

of the head that was done on admission was

reported as positive for a remote area of

ischemia involving the basal ganglia but

repeat MRI on admission showed no area of

acute ischemia. The patient was witnessed to

have back arching and head extension with

some clenching of the arms and chest, a gain

unsure whether this was seizure versus reflux

versus obstructive airway. Neurology

examined the patient and EEG showed no

epileptiform discharges although was limited

secondary to movement artifact.

19. The repeat MRI referenced in Dr. DavidÓs disc harge

summary was done on December 12, 2009. The findings of this MRI

indicated that there was no acute ischemic event.

20. Respondent retained Donald C. Willis, M.D., to review

the medical records for Kayla. Dr. Willis reviewed the fetal

heart rates of Kayla as recorded by the fetal heart rate monitor

during labor. It is Dr. WillisÓ opinion that the fetal heart

rate monitor did not show any fetal distress during labor. On

the issue of whether there was an obstetrical event which

resulted in loss of ox ygen or mechanical trauma to Kayla during

labor or delivery, Dr. Willis opined:

In summary, there was no fetal distress

during labor. The baby was not in distress

at birth. Apgar scores were 8/9.

Immediately after delivery, the baby was

placed on the mo therÓs abdomen for bonding.

The newborn course was complicated by a

complex history of apnea episodes,

respiratory distress and possible seizures.

EEGÓs and MRI studies were normal.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor or

delivery.

21. Raymond J. Fernandez, M.D., a pediatric neurologist,

reviewed KaylaÓ s medical records and examined Kayla on April 30,

2013. He opined as follows:

There is ample evidence for substa ntial

mental and motor impairment, but this is of

unknown etiology. There is no evidence in

the medical record for oxygen deprivation or

mechanical injury of brain or spinal cord

during labor, delivery, or the immediate post

delivery period that explains KaylaÓs

substantial and global impairment.

22. Petitioners have presented no expert opinions that

refute the opinions of Dr. Willis and Dr. Fernandez. The

opinions of Dr. Willis and Dr. Fernandez that KaylaÓs mental and

motor impairments are not due to oxygen deprivation or mechanical

injury of the brain or spinal cord during labor, delivery, or the

immediate post delivery period are credited.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the su bject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (2012).

24. The NICA Plan was established by the Legislature "for

the purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to birt hs

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

25. 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 birth - related neurological

injury." § 766.305(4), Fla. Stat. 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.

26. In the instant case, Petitioners filed a claim alleging

that Kayla did sustain a birth - related neurological injury that

is compensable under the NICA Plan, and NICA has determined that

the injury is not compensable under the Plan. As the proponent

of the issue of compensability, the burden of proof as to

compensability is upon Petitioners. See Balino v. Dep't of

Health & Rehab. Servs. 3 48 So. 2d 349, 350 (Fla. 1st DCA 1997).

Therefore, 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.

27. 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 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 p resumption 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 p ostdelivery 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. Sta t. 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.

2 8. 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 cas e 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.

2 9. Based on the stipulated record presented, Kayla did not

sustain a birth - related neurological injury because her mental

and motor impairments are not the result of oxygen dep rivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitation in the immediate post delivery period. Thus, Kayla

does not qualify for benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

The claim for compensation filed by Tatiana C. Stowers and

Robert M. Stowers on behalf of and as natural guardians of

Kayla Mackenzie Stowers, a minor, is dismissed with prejudice.

DONE AND ORDERED this 9th day of January , 2014 , 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 Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of January , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury C ompensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1621 0691)

P. Scott Russell, Esquire

Suite 601

1300 Riverplace Boulevard

Jacksonville, Florida 32207

(Certified Mail No. 7013 1710 000 0 1621 0707)

Rogelio Jose Fontela, Esquire

Dennis, Jackson, Martin and Fontela, P.A.

Suite 200

1591 Summit Lake Drive

Tallahassee, Florida 32317

(Certified Mail No. 7013 1710 0000 1621 0714)

Travase Lloyd Erickson, Esquire

Saalfield, Shad, Stokes, Inc lan,

Stoudemire and Stone, P.A.

Suite 400

245 Riverside Avenue

Jacksonville, Florida 32202

(Certified Mail No. 7013 1710 0000 1621 0721)

M. Mark Bajalia, Esquire

Brennan, Manna and Diamond

800 West Monroe Street

Jacksonville, F lorida 32202

(Certified Mail No. 7013 1710 0000 1621 0738)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 1710 0000 1621 0745)

Elizabeth Dudek, Secretary

Heal th Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1621 0752)

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 administrat ive appeal

with the a gency c lerk 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 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).