13-000760N Matthew Salling And Mandy Schumacher, On Behalf Of And As Parents And Natural Guardians Of Jackson J. Salling, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, August 23, 2013.

Summary: Child did not sustain oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW SALLING AND MANDY

SCHUMACHER, on behalf of and as

parents and natural guardians of

JACKSON J. SALLING, a minor ,

Petitioners ,

vs. Case No. 13 - 0760N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSO CIATION ,

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 Injur y Compensation Association (NICA), on July 25,

2013.

STATEMENT OF THE CASE

On February 27 , 2013, Petitioners, Matthew Salling and

Mandy Schumacher , on behalf of and as parents and natural

guardians of Jackson J. Salling (Jackson ), a minor, filed a

Petitio n 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 Petit ion named Luisa Vanegas , M.D., as the physician

providing obstetric services at the birth of Jackson at Brandon

Regional Hospital located in Brandon , Florida.

DOAH served NICA with a copy of the Petition on March 4,

2013 . DOAH served a copy of the Petit ion on Dr. Vanegas on

March 4 , 2013. DOAH received a return receipt from the United

States Postal Service on May 1, 2013, showing that Brandon

Regional Hospital had been served with a copy of the Petition.

As of the date of th is Summary Final Order of Di smissal, neither

Dr. Vanegas nor Brandon Regional Hospital has petitioned to

intervene in this proceeding.

On July 25 , 2013, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. A response to the motion was due

to be filed on August 1 , 2013. No response was filed. On

August 6, 2013, an Order was entered requiring Petitioners to

show cause on or before August 20 , 2013, why the motion should

not be granted. As of the date of this Summary Final Order of

Dismissal, Petitioners have filed no response to the motion for

summary final order.

FINDINGS OF FACT

1. Jackson J. Salling was born on February 28, 2008 , at

Brandon Regio nal Hospital in Brandon , Florida. Jackson weighed

4,070 grams at birth.

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

expert in pediatric neurology. Dr. Duchowny examined Jackson and

reviewed his medical records. In an affidavit dated July 22 ,

2013, Dr. Duchowny opined as follows:

Based upon the history provided to me and

my physical and neurological examination of

the child, and as further described in my

evaluation report, I concluded that the child

has a substantial mental impairment but does

not evidence a substantial motor impairment.

Further the medical records do not provide

support for neurological injury of the brain

or spinal cord acquired due to oxygen

deprivation or mechanical injury. Rather,

JacksonÓs present neurological prob lems are

prenatal in origin and unrelated to

intrapartum or immediate post - delivery

events.

* * *

It is my medical opinion that Jackson

Salling has not suffered a birth - related

neurological injury as defined by the

provisions of Chapter 766, Flor ida Statutes,

and the he therefore is not eligible for

compensation under the Florida Birth - Related

Neurological Injury Compensation Plan.

3. NICA retained Donald Willis, M.D., as an expert in

maternal - fetal medicine to review the medical records of Jack son

and his mother. In an affidavit dated July 19 , 2013, Dr. Willis

opined:

Jackson Salling was born by vaginal

delivery after elective induction of labor at

39 weeks gestation. Delivery was complicated

by a shoulder dystocia lasting three minutes

which resulted in a fractured humerus bone.

Umbilical cord gas was within normal limits,

and did not suggest hypoxia at birth. The

newborn was cyanotic, floppy, and without

spontaneous respirations at birth. His one -

minute Apgar score was 3. Bag and mask

ven tilation was given and the child quickly

improved, with an Apgar score of 9 at five

minutes and 9 at 10 minutes. Significant

oxygen deprivation during labor and birth

would be unlikely with normal Apgar scores of

five and ten minutes. The fractured humer us

required orthopedic management. No MRI or CT

scan of the head was done.

Based on my review of medical records, it

is my opinion that there was no obstetrical

event that resulted in loss of oxygen or

mechanical trauma to the babyÓs brain during

labor, delivery, or the immediate post -

delivery period.

4. A review of the file does not show any opinions contrary

to the opinions of Dr. Duchowny and Dr. Willis that Jackson did

not suffer a neurological injury due to oxygen deprivation or

mechanical injury d uring labor , delivery , or resuscitation in the

immediate post - delivery period and that Jackson does not have

substantial and permanent mental and physical impairment s due to

lack of oxygen or mechanical trauma are credited.

CONCLUSIONS OF LAW

5. The Divi sion of Administrative Hearings has jurisdiction

over the parties to and the subject 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 f ault, 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 u nder

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

petitio n 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.

8. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurologic al 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. If, on the other hand, NICA

disputes the claim, as it has in the insta nt case, 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.

9. 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 h as

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

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate postdelivery period in a

hospital; or by a ce rtified 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. Stat. An award may be sustained only if the

ad ministrative 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.

10. The term "birth - related neurological inj ury" 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 wei ghing 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 me ntally

and physically impaired.

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

Jackson 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 durin g resuscitation in the

immediate post - delivery period, which resulted in substantial and

permanent mental and physical impairments. Therefore, Jackson is

not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and C onclusions of

Law, it is ORDERED that the Petition filed by Matthew Salling and

Mandy Schumacher , on behalf of and as parents and natural

guardians of Jackson J. Salling , is dismissed with prejudice.

DONE AND ORDERED this 23rd day of August , 2013 , in

Tall ahassee, 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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August , 2013 .

COPIES FURNISHED:

( V ia certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compen sation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7013 0600 0002 2576 0694)

Matthew Salling

Mandy Schumacher

8613 Magnolia Street

Gibsonton, Florida 33534

(Certified Mail No. 7013 0600 0002 2576 0700)

Mar sha E. Rule, Esquire

Rutledge, Ecenia and Purnell, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(Certified Mail No. 7013 0600 0002 2576 0717)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cyp ress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 0600 0002 2576 0724)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certifie d Mail No. 7013 0600 0002 2576 0731)

Brandon Regional Hospital

Attention: Risk Management

119 Oakfield Drive

Brandon, Florida 33511 - 6007

(Certified Mail No. 7013 0600 0002 2576 0748)

Luisa Vanegas, M.D.

11399 Lake Underhill Road

Orlando, Florida 32825

(Certified Mail No. (7013 0600 0002 2576 0755)

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. Revi ew 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 29 9 (Fla. 1st DCA

1992).