13-001100N Amber Lane And Alonzo Kelley, On Behalf Of And As Parents And Natural Guardians Of Destini Kelley, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, July 24, 2015.

Summary: Child did not sustain an injury to the brain caused by oxygen deprivation or mechanical injury in the course of labor, delivery or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBER LANE AND ALONZO KELLEY, on

behalf of and as parents and

natural guardians of DESTINI

KELLEY, a minor,

Petitioners,

vs. Case No. 13 - 1100N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ST. JOSEPH'S WOMEN'S HOSPITAL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Third Renewed

Motion for Summary Final Orde r filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on May 4 , 201 5 .

STATEMENT OF THE CASE

On March 22, 2013, Petitioners, Amber Lane and Alonzo

Kelley , on behalf of and as parents of Destini Kelley ( Destini ),

a minor, filed a Petition Under Protest Pursuant to Florida

Statutes Section 766.301 et seq. with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Pla n). The case was assigned to

Administrative Law Judge Susan B. Kirkland. On April 18, 201 3 ,

Petitioners filed a Motion for Leave to Amend NICA Petition,

which was granted by Order dated May 29, 2013. The Amended

Petition (Petition) named Teresa L. Conra d , M.D., as the

physician who provided obstetric services for the birth of

Destini on March 26, 2008, at St. JosephÓs Hospital for Women

located in Tampa , Florida.

DOAH served NICA with a copy of the Petition on March 27,

2013 . DOAH received a return rece ipt from the United States

Postal Service on May 13, 2013, showing that St. JosephÓs

Hospital for Women had been served with a copy of the Petition.

DOAH receiv ed a return receipt from the United States Postal

Service on July 26, 2013, showing that Dr. Co nrad was served with

a copy of the Petition.

On May 14, 2013, St. JosephÓs WomenÓs Hospital filed a

Motion to Intervene, which was granted by Order dated May 29,

2013. As of the date of the Summary Final Order of Dismissal ,

Teresa L. Conrad, M.D., has n ot petitioned to intervene in this

proceeding.

On August 27 , 201 3 , NICA filed a Motion for Summary Final

Order, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable asserting that Destini did not

sustain a Ðbirth - rela ted neurological injuryÑ as that term is

defined in section 766.302(2), Florida Statutes . On

September 16, 2013, an Order to Show Cause was entered directing

Intervenors to show in writing by September 2 7, 2013, why NICAÓs

Motion for Summary Final Order s hould not be granted. On

September 27, 2013, Intervenor filed a Response to Order to Show

Cause stating that Intervenor had not been provided with certain

medical records necessary for Intervenor to evaluate this claim.

After conducting a telephonic heari ng on the Motion for Summary

Final Order and Order to Show Cause, Judge Kirkland entered an

Order Extending Time to Respond to Motion for Summary Final Order

on October 22, 2013, granting an extension of time until

November 4, 2013, for Intervenor to file a response to NICAÓs

Motion for Summary Final Order. The docket does not reflect that

a response was filed.

On February 10, 2014, NICA filed a Renewed Motion for

Summary Final Order. A Motion to Withdraw as Counsel for

Petitioners was granted by Order d ated April 3, 2014, allowing

PetitionersÓ counsel to withdraw from representation of

Petitioners. Intervenor filed a Response to NICAÓs Renewed

Motion for Summary Final Order on March 27, 2014, in opposition

to NICAÓs renewed motion. Intervenor asserted that NICAÓs

maternal - fetal expert, Dr. Willis, had not been provided with

certain medical records and that Destini had not yet been

evaluated by a pediatric neurologist. On June 6, 2014, and

subsequent to a telephonic hearing on the Motion, an Order

Denyi ng Renewed Motion for Summary Final Order was entered,

noting that no appearance had been made by new counsel for

Petitioners, and that Petitioners had not responded to the

Renewed Motion. On June 6, 201 4 , a Notice of Hearing by Video

Teleconferencing was issued scheduling the final hearing for

September 9, 2014. On August 18, 2014, NICA filed a Motion for

Extension of Time and to Reschedule Final Hearing on the grounds

that Petitioners had not responded to discovery propounded by

R espondent, that additio nal discovery propounded upon Petitioners

by Respondent had not been returned in the mail, and that an

examination with a pediatric neurologist had been scheduled for

October 21, 2014.

On August 21, 2014, a Notice of Case Reassignment was

entered reassi gning the case to the undersigned, due to Judge

KirklandÓs impending retirement. On September 2, 2014, an Order

Granting Continuance was entered.

On September 3, 2014, a Notice of Appearance was filed by

Nicole Sivils, Esquire, of The Florida Law Group on behalf of

Petitioners. On October 3, 2014, NICA filed a Second Renewed

Motion for Summary Final Order. On October 15, 2014, Intervenor

filed its Response to NICAÓs Second Renewed Motion for Summary

Final Order, asserting that Petitioners had not fully r esponded

to its discovery requests, had not admitted all Requests for

Admissions without qualification or restriction, and that the

examination by the pediatric neurologist had not yet taken place.

On October 20, 2014, NICAÓs Second Renewed Motion for Summ ary

Final Order was denied.

Also on October 20, 2014, Petitioners filed a Notice of

Serving PetitionerÓs Response to Intervenor St. JosephÓs WomenÓs

HospitalÓs Request for Admissions. Intervenor interprets

PetitionersÓ responses to be an admission that Destini sustained

a birth related neurological injury.

On December 2, 2014, the parties filed a Status report

indicating that all parties requested an additional 90 days to

complete discovery and to report back as to the status of the

case and whether a he aring would be necessary. On February 5,

2015, the parties filed another Joint Status Report requesting

until May 15, 2015, to complete discovery and to report back to

the undersigned. On March 18, 2015, John McKnight, also of The

Florida Law Group, ente red a Notice of Appearance. On March 18,

2015, PetitionersÓ new counsel filed a Motion to Withdraw which

was granted by Order dated March 25, 2015. Petitioners have been

representing themselves since that time.

NICA filed the instant Third Renewed Motio n for Summary

Final Order on May 4, 2015. On May 15, 2015, Respondent filed a

Status Report. Counsel for Respondent informed that he was

advised by Petitioner Lane that she did not want NICA benefits

and did not want her daughter further evaluated. This

declaration to RespondentÓs counsel was not confirmed by any

pleading filed by Petitioners but is consistent with the Petition

for Benefits, as amended, which clearly stated that the Ðparents

are NOT CLAIMANTS.Ñ In any event, the scheduled evaluation of

Destini by a pediatric neurologist did not take place.

On May 18, 2015, Intervenor filed its Response to NICAÓs

Third Renewed Motion for Summary Final Order to which Respondent

filed a Reply. Intervenor requested a hearing requiring

Petitioners to state u nder oath whether they sought NICA benefits

and that, if they did not want benefits, the Petition should be

withdrawn by Petitioners or dismissed by the undersigned.

Several efforts were made by the undersignedÓs office to

schedule a telephonic hearing wit h all parties present, but these

efforts were unsuccessful due to Petitioners not responding to

these efforts. Accordingly, on June 8, 2015, an O rder to Show

Cause was entered instructing the parties to inform the

undersigned in writing no later than June 22, 2015, as to why

NICAÓs third renewed Motion for Summary Final Order should not be

granted. The Order to Show Cause informed the parties that

whether Petitioners want or do not want NICA benefits, the

undersigned is required to make a determination as to whether the

claim is compensable pursuant to section 766.304, Florida

Statutes. The Order to Show Cause further informed that absent

PetitionersÓ withdrawal of their Petition, the undersigned must

make a determination of whether or not this claim is c ompensable

under the NICA Plan. Intervenor and NICA filed responses to the

Order to Show Cause. Petitioners did not file a response.

Intervenor reasserted its position that Petitioner , Ms. Lane,

should be required to state under oath whether or not she ( they)

wanted NICA benefits in that she apparently informed Judge

Kirkland during a telephonic hearing at some point in this

process that she (they) did want NICA benefits. NICA responded

that whether Petitioners want or do not want NICA benefits is

irrele vant, and that no evidentiary hearing is necessary and that

further examination of Destini is not required to bring this

claim to resolution . NICA urges that the case should be

determined by NICAÓs pending Third Renewed Motion for Summary

Final Order.

It is not uncommon for Petitioners in NICA cases to file a

Petition for a determination of NICA benefits, when they are not

seeking such benefits. In such instances, the Petitions are not

dismissed. Rather, the AJL makes a determination of whether the

injur y is compensable under the NICA Plan.

FINDINGS OF FACT

1. Destini Kelly was born on March 26 , 2 008 , at St.

JosephÓs Hospital for Women in Tampa , Florida. Destini weighed

in excess of 2,500 grams .

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

to review the medical records for Destini . In a report dated

May 23 , 201 3 , Dr. Willis described his findings in pertinent part

as follows:

I have reviewed the medical records for the

above individual. The mother, Amber Lane was

a 20 year old G1. Pr egnancy course was

uneventful. She was admitted to the hospital

for induction of labor due to post - dates.

Genital Group B streptococcus (GBS) culture

during pregnancy was positive and antibiotics

were given during labor.

The fetal heart rate (FHR) monit or tracing

during labor was not available for review.

Delivery was by vaginal birth. Birth weight

was 3,516 grams or 7 lbs 12 ozs. The newborn

was not depressed . Apgar scores were 8/9.

Umbilical cord blood gas was not done.

Newborn nursery admission ex am was normal.

The hospital course was uneventful. The baby

was discharged home on two days after birth.

In summary, the baby was not depressed at

birth and had a normal newborn hospital

course.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery, or the immediate post delivery

period. I would not expect review of the FHR

tracing during labor to change the above

conclusions, but would be happy to review the

tracings if available.

Thank you for allowing me to review this

case.

3. In an affidavit dated July 2, 2013, Dr. Willis

reaffirmed his opinion that t here was no apparent obstetrical

event that resulted in loss of oxygen or mechanical trauma to the

babyÓs brain dur ing labor , delivery or the immediate post -

delivery period.

4. Petitioners denied the following request for admission:

ÐDestini Kelly did not suffer mechanical trauma to the babyÓs

brain or spinal cord during labor, delivery or the immediate

post - delivery period.Ñ

5. Petitioners admitted the following request for

admission: ÐDestini Kelly did not suffer oxygen deprivation

during labor, delivery or in the immediate post - delivery period

that rendered the infant permanently and substantially mentally

and phy sically impaired.Ñ

6. Petitioners denied the following request for admission:

ÐDestini Kelly is not permanently and substantially physically

impaired.Ñ

7. Petitioners denied the following request for admission:

ÐDestini Kelly is not permanently and subst antially mentally

impaired.Ñ

8. The above quoted - responses are confusing in that

Petitioners were denying a negative. These responses are not

sufficient to establish that Destini did sustain a birth - related

neurological injury as contemplated in section 766.309(1).

Moreover, Petitioners did not respond to RespondentÓs Third

renewed Motion for Summary Final Order or the Order to Show

Cause, thereby raising no disagreement with NICAÓs motion.

9 . A review of the file reveals that no contrary expert

evide nce was presented by either Petitioners or Intervenor to

dispute Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the brain during labor, delivery, or the immediate

post - delivery perio d. H is opinion was filed initially with

NICAÓs Motion for Summary Final Order on August 27, 2013, and

again with the Third Renewed Motion for Summary Final Order filed

May 4, 2015. Dr. WillisÓ opinion is credited.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

11 . 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.

12 . 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

petit ion 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.

13 . NICA has determined that Petitioners do not have a

claim that is compensable under the Plan and has filed a Motion

for Summary Final Order, requesting that an order be entered

finding that the claim is not compensable.

14 . In ruling on the motion, the Administrative Law Judge

must make the following determination based upon the available

eviden ce:

(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 presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.30 2 (2).

§ 766.309( 1), Fla. Stat.

1 5 . 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 gestat ion 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, delivery, or

resuscitation in the immediate postdelivery

period in a hospi tal, which renders the

infant permanently and substantially mentally

and physically impaired.

1 6 . The evidence, which is not refuted, established that

Destini did not sustain an injury to the brain caused by oxygen

deprivation or mechanical injury in th e course of labor, delivery

or the immediate post - delivery period. Th erefore , as any injury

to Destini does not meet the definition of a Ðbirth - related

neurological injuryÑ as defined by section 766.302(2), Destini is

not eligible for benefits under the P lan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition , as amended, filed by Amber

Lane and Alonzo Kelley , o n behalf of and as parents and natural

guardians of Destini Kelley , a minor, is dism issed with

prejudice.

DONE AND ORDERED this 23rd day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 23rd day of July , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley , Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2298)

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1052 7050)

David S. Nelson, Esquire

La Cava and Jacobson, P.A.

101 East Kennedy Boulevard , Suite 2500

Tampa, Florida 33602

(eServed)

(C ertified Mail No. 7014 2120 0003 1052 7067)

Amber D. Lane

Alonzo Kelley

10125 Woodsong Way

Tampa, Florida 33618 - 4213

(Certified Mail No. 7014 2120 0003 1052 7074)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cy press Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1052 7081)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certifi ed Mail No. 7014 2120 0003 1052 7098)

Teresa L. Conrad, M.D.

10305 Seabridge Way

Tampa, Florida 33626

(Certified Mail No. 7014 2120 0003 1052 7104)

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 n otice of a dministrative a ppeal

wi th 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).