13-000688N William And Cherise Moore, On Behalf Of And As Parents And Natural Guardians Of Sarah Elizabeth Moore, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, December 23, 2013.

Summary: Infant sustained oxygen deprivation during labor which resulted in permanent and substantial mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM AND CHERISE MOORE, on

behalf of and as parents and

natural guardians of SARAH

ELIZABETH MOORE, a minor ,

Petitioners ,

vs. Case No. 13 - 0688N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

WOMEN'S CARE FLORIDA AND BRIAN

MCNULTY, M.D.,

Intervenors .

/

SUMMARY FINAL ORDER

This cause came on for consideration upon an Unopposed

Motion for Summary Final Order fi led by Respondent, Florida

Birth - Related Neurological Injury Compensation Association (NICA)

on November 11, 2013.

STATEMENT OF THE CASE

On February 19, 2013, Petitioners, William Moore and

Cherise Moore, on behalf of and as parents and natural guardians

o f Sarah Elizabeth Moore (Sarah), 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 compensation under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Brian McNulty, M.D. as the physician providing obstetric services

at the birth of Sarah at Florida Hospital Tampa Bay.

DOAH served NICA with a copy of the Petition on February 26,

201 3 . DOAH served Dr. McNulty and Florida Hospital Tampa Bay

with copies of the Petition on February 27, 2013. On July 22,

2013, WomenÓs Care Florida and Dr. McNulty filed Intervenors,

WomenÓs Care Florida and Brian McNulty, M.D.Ós Petition and

Motion to Intervene, which was granted by Order dated August 6,

2013. As of the date of this Summary Final Order, Florida

Hospital Tampa Bay has not petitioned to intervene in this

proceeding.

On November 11, 2013, NICA filed an Unopposed Motion for

Summary Final Order, asserting that Sarah di d sustain a "birth -

related neurological injury" as that term is defined in section

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

that neither Petitioners nor Intervenors opposed the granting of

the motion.

FINDINGS OF FACT

1. Sarah Elizab eth Moore was born on January 2, 2013, at

Florida Hospital Tampa Bay in Tampa, Florida. She weighed 2,690

grams at birth.

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

to review the medical records of Sarah. In a report dated

August 8, 2013 , Dr. Willis opined as follows:

In summary, the mother had abdominal trauma

the day before delivery that resulted in what

appears to be a fetal - maternal hemorrhage,

causing severe fetal anemia. The blood count

(Hct) at birth was only 16%. Fetal/newborn

a nemia resulted in hypoxia and acidosis,

which worsened after delivery. The umbilical

cord blood gas had a base excess of - 9.9,

which significantly worsened to a based

excess of - 20 within minutes after birth.

Hospital course was complicated by multi -

syst em failure, consistent with hypoxic

injury. MRI identified global hypoxic

ischemic encephalopathy.

The mother was apparently not in labor. The

fetus did not appear to have significant

hypoxia at time of birth, but developed

severe hypoxia during the imm ediate post

delivery period. The oxygen deprivation

during the post - delivery period resulted in

brain injury. There was no injury due to

mechanical trauma.

3. On October 11, 2013, Raymond J. Fernandez, M.D.,

evaluated Sarah. His examination revealed t hat Sarah had

[s]ubstantial mental and motor impairment due

to oxygen deprivation that began prior to

delivery and continued during delivery and

during the immediate post delivery period of

resuscitation. Acidosis, due to hypoxia

persisted for approximate ly eight to ten

hours after birth. Sarah has severe

microcephaly, indicative of severe brain

atrophy that is predictive of permanent and

substantial impairment, both motor and

mental.

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

have been no expert opinions filed that are contrary to the

opinions of either Dr. Willis or Dr. Fernandez. The opinions of

Dr. Willis and Dr. Fernandez that Sarah did suffer a neurological

injury due to oxygen deprivation during the immediate post -

delivery resuscitat ion period are credited. Additionally,

Dr. FernandezÓs opinion that Sarah has both a substantial mental

and motor impairment is also credited.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has jurisdiction

over the parties to and the sub ject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

6 . 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.

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 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 whe ther 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 a ward is approved

by the administrative law judge to whom the claim has been

assigned. § 766.305(7), Fla. Stat. The administrative law judge

must make the following determination based upon the available

evidence:

(a) Whether the injury claimed is a birt h -

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 the reby

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 p articipating 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

labor, delivery, o r 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

injury to the brain or spina l 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, d elivery, 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 not refuted, established that

Sarah did sustain an injury t o the brain caused by oxygen

deprivation occurring in the course of resuscitation in the

immediate postdelivery period in a hospital, which renders her

substantially and permanently physically and mentally impaired.

Therefore, Sarah is eligible for benefi ts under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Respondent's Unopposed Motion for Summary Final Order is

granted, and Sarah Elizabeth Moore sustained a birth - related

neurological injury which is compensable under the Plan.

2. Jurisdiction is reserved to determine the issue of award

pursuant to section 766.31.

3. It is further ORDERED that the parties are accorded 30

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

of the a dministrative l aw j udge, 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

previousl y incurred. If not resolved within such period, the

parties shall so advise the a dministrative l aw j udge, and a

hearing will be scheduled to resolve such issues. Once resolved,

an award will be made consistent with section 766.31.

DONE AND ORDERED this 2 2nd day of November , 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.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2013 .

COPIES FURNISHED:

( V ia certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8358 0397)

Daniel J. McBreen, Esquire

de la Parte and Gilbert, P.A.

Suite 2000

101 East Kennedy Boulevar d

Tampa, Florida 33602

(Certified Mail No. 7012 1010 0001 8358 0403)

Justine D. Adamski, Esquire

La Cava and Jacobson, P.A.

Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602

(Certified Mail No. 7012 1010 0001 8358 0410)

Jeffrey P. Brock, Esqui re

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7012 1010 0001 8358 0427)

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 1010 0001 8358 0434)

Elizabeth 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 8358 0441)

Florida Hospital Tampa Bay

3100 East Fletcher Avenue

Ta mpa, Florida 3361 3

(Certified Mail No. 7012 1010 0001 8358 0458)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an ad ministrative 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 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 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).