12-003889N Neil And Renjini Kannikal, On Behalf Of And As Parents And Natural Guardians Of Neha, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 8, 2013.

Summary: Child is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during labor, delivery or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NEIL AND RENJINI KANNIKAL, on

behalf of and as parents and

natural guardians of NEHA, a

minor ,

Petitioners ,

vs. Case No. 12 - 3889N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Associati on (NICA), on June 24,

2013.

STATEMENT OF THE CASE

On November 29, 2012, Petitioners, Neil Kannikal and

Renjini Kannikal, on behalf of and as parents and natural

guardians of Neha, a minor, filed a Petition for Benefits

Pursuant to Florida Statute 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 Shelby Wilbourne , M.D., as the physician

providing obstetric services at the birth of Neha at Broward

General Medical Center located in Fort Lauderdale, Florida.

DOAH served NICA with a copy of the Petition on December 5,

2012. DOAH received a receipt from the United States Postal

Service on D ecember 7, 2012, showing that Broward General Medical

Center had been served with a copy of the Petition.

Dr. Wilbourne was served a copy of the Petition by DOAH on

December 6, 2012.

As of the date of this Summary Final Order of Dismissal,

neither Browa rd General Medical Center nor Dr. Wilbourne have

petitioned to intervene in this proceeding.

On June 24, 2013, NICA filed a Motion for Summary Final

Order, asserting that Neha did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Petitioners filed PetitionersÓ

Response in Opposition to Motion for Summary Final Order on

July 1, 2013.

On July 11, 201 3 , the Motion for Summary Final Order was

heard by telephonic conference call. Petitioners ha d filed

medical records from NehaÓs treating physician. The records in

and of themselves did not refute RespondentÓs allegation that

Neha did not have a birth - related neurological injury. By Order

dated July 11, 2013, Petitioners were given an extension of time

in which to file a supplemental response to the Motion for

Summary Final Order on or before October 1, 2013. As of the date

of this Summary Final Order of Dismissal, Petitioners have not

filed a supplemental response to the motion.

FINDINGS OF FAC T

1. Neha was born on May 15, 2012, at Broward General

Medical Center, located in Fort Lauderdale, Florida. Neha

weighed six pounds nine ounces at birth.

2. NICA retained Michael S. Duchowny, M.D., as its medical

expert in pediatric neurology. Dr. Duc howny examined Neha on

March 20, 2013, and reviewed her medical records. In an

affidavit dated April 24, 2013, Dr. Duchowny opined as follows:

NehaÓs neurological examination is

significant only for a mild degree of

hypontia coupled with very slight motor

development delay. In other regards, she

seems to be developing quite well and I

suspect that her language development will

progress on schedule. There are no focal or

lateralizing findings to suggest structural

brain damage.

A review of medical record s reveals that Neha

was born by stat cesarean section at Broward

General Hospital due to fetal bradycardia.

She was delivered with a full body nuchal

cord and a true knot that was removed at

birth. There was evidence of severe

metabolic acidosis - arterial blood gases drawn

11 minutes after birth revealed a pH of 6.66,

PC02 of 162, P02 of 11, and base excess of

- 32. These values were improved on a repeat

series drawn at 12:27 PM.

Thick meconium was suctioned below the vocal

cords and Neha was diagnosed with meconium

aspiration syndrome. Seizures occurred

several after birth and were treated with

phenobarbital and phenytoin. As previously

stated by the family, Neha was immediately

enrolled in a general hypothermia protocol.

Of significance, a brain ult rasound exam

obtained on May 15 at 6:46 PM, was normal and

an MRI scan of the brain obtained on May 23

(DOL #8) was also within normal limits.

NehaÓs examination today does not reveal

either a substantial mental or motor

impairment, findings are consisten t with the

lack of significant MRI findings. I believe

that the hypothermia protocol in all

likelihood was neuro - protective and more

likely than not, contributed to NehaÓs

positive outcome.

Given NehaÓs favorable outcome, I believe

that she should not be considered for

inclusion within the NICA program.

As such, it is my opinion that Neha Kannikal

is not permanently and substantially mentally

impaired nor is she permanently and

substantially physically impaired due to

oxygen deprivation or mechanical inj ury

occurring during the course of labor,

delivery or the immediate post - delivery

period in the hospital during the birth of

Neha Kannikal.

3. A review of the file does not show any opinion contrary

to Dr. Duchowny's opinion that Neha does not have a sub stantial

and permanent mental and physical impairment due to lack of

oxygen or mechanical trauma 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), 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), Fl a. 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 - relate d 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, provided that the award is approved

by the administr ative 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 prov isions of chapter 120, Florida Statutes.

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

8. In discharging this responsibility, the a dministrative

l aw j udge must make the following determination based upon the

available evidence:

(a) Whether the injury cla imed 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 services were

de livered 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 course of

labo r, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

a dministrative l aw j udge concludes that the "infant has sustained

a birth - related neurological injury and th at 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

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 cou rse 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

Neha Kannikal is not permanently and substantially mentally

impaired nor is she permanently and substantially physically

impaired due to oxygen deprivation or mechanical injury occurring

during the course of labor, delivery or the immediate post -

delivery period. Theref ore, Neha 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 Neil Kannikal and

Renjini Kannikal, on behalf of and as parents and natural

guardia ns of Neha, is dismissed with prejudice.

DONE AND ORDERED this 8th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 8th day of October , 2013 .

COPIES FURNISHED:

( V ia cert ified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0001 0076 4 109 )

Theodore Forman, Esquire

Forman Law Offices, P.A.

334 Northeast First Avenue

Delray Beach, Florida 33444

(Certified Mail No. 7012 3050 0001 0076 4048)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 30 50 0001 0076 4055)

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 0001 0076 4062)

Elizabeth Dudek, Secretary

Health Quality Assu rance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0001 0076 4079)

Broward General Medical Cen ter

North Broward Hospital District

1600 South Andrews Avenue

Fo rt Lauderdale, Florida 33316

(Certified Mail No. 7012 3050 0001 0076 4086)

Shelby Wilbourne, M.D.

500 Southeast 17th Street

Fo rt Lauderdale, Florida 33316

(Certified Mail No. 7012 3050 0001 0076 4093)

N OTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order o f 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 o riginal 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 order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate Di strict 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).