13-001652N Sherita Leeks, As Personal Representative Of The Estate Of Jer?Donis Pringle, On Behalf Of His Survivors, Individually Sherita Leeks And Gregory Pringle vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 8, 2013.

Summary: Infant's mother was not in labor prior to delivery. Infant suffered severe oxygen deprivation resulting in brain injury prior to delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERITA LEEKS, as personal

representative of the estate of

JERÓDONIS PRINGLE, on behalf of

his survivors, individually

SHERITA LEEKS and GREGORY

PRINGLE ,

Petitioners ,

vs. Case No. 13 - 1652N

FLORIDA BIRTH - RELATED

NEU ROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

HAINES CITY HMA, LLC, d/b/a

HEART OF FLORIDA REGIONAL

MEDICAL CENTER; EDMUND ANDAH,

M.D.; AND HEART OF FLORIDA OBGYN

ASSOCIATES, P.A.,

Intervenors .

/

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 Association (NICA), on

August 29, 2013.

STAT EMENT OF THE CASE

On April 19, 2013, Petitioner, Sherita Leeks, individually

and as personal representative of the estate of JerÓDonis Pringle

(JerÓDonis), on behalf of his survivors , and Gregory Pringle,

individually, filed a Petition Filed Under Protest (Petition)

with the Division of Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). An Amended

Petition Filed Under Protest (Amended Petition) was filed on

May 6, 2013.

The Petition named Edmund Andah as the physician who

delivered JerÓDonis at Heart of Florida Regional Medical Center

located in Davenport, Florida.

DOAH served NICA with a copy of the Petition on May 9, 2013.

On May 29, 2013, Haines City HMA, L LC., d/b/a Heart of Florida

Regional Medical Center filed a Motion for Leave to Intervene,

which was granted by Order dated June 11, 2013. On June 14,

2013, Dr. Andah and Heart of Florida OB/GYN Associates, P.A.,

filed a Motion for Leave to Intervene, whi ch was granted by Order

dated July 17, 2013.

On August 29, 2013, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Neither Petitioners nor

Intervenors filed a response to the motion.

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

requiring Petitioners and Intervenors to show cause in writing

why the Motion for Summary Final Order should not be granted. On

October 1, 2013, NICA filed a Status Report, representing that

all parties agree and stipulate to the entry of a Summary Final

Order finding that PetitionersÓ claim is not compensable.

FINDINGS OF FACT

1. JerÓDonis Pringle was born on June 24, 2011, at He art of

Florida Regional Medical Center located in Davenport, Florida.

JerÓDonis weighed 3,004 grams at birth.

2. NICA retained Donald Willis, M.D., a Florida board -

certified obstetrician and gynecologist specializing in maternal -

fetal medicine to review the medical records of JerÓDonis. In an

affidavit dated July 2, 2013, Dr. Willis opined as follows:

Based upon my education and experience, it is

my professional opinion, within a reasonable

degree of medical probability that the

pregnancy was complicate d by Maternal

Diabetes, that fetal testing at 34 weeks

suggested fetal distress, that based on

available medical records, the mother did not

appear to be in labor at time of delivery by

Cesarean section, and that the baby suffered

severe oxygen deprivation and resulting brain

damage. Overall findings suggest that severe

brain injury occurred a t some time prior to

hospital admission and, therefore, prior to

delivery.

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

to Dr. WillisÓ opinion that Sh erita Leeks was not in labor prior

to delivery and that JerÓDonis suffered severe oxygen deprivation

resulting in brain injury prior to admission to the hospital and

delivery is credited.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has j urisdiction

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 c ompensation 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 writt en information relating to

the issue of whether the injury is a birth - related 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

compen sation 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 instant case, the dispute

must be r esolved 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.

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 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 inj ury

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 certified nurse midwife in

a tea ching 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

administrative law judge conclud es 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 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 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 .

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

JerÓDonisÓ mother was not in labor prior to delivery and that

JerÓDonis suffered severe oxygen deprivation resulting in brain

injury prior to delivery. Thus, Petitioners are not entitled to

com pensation under the plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Sherita Leeks,

individually and as personal representative of the estate of

JerÓDonis Pringle, and by Gregory Pr ingle, individually , 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 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 8th day of October , 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 3050 0001 0076 3911)

Sanga Turnbull, Esquire

Smith and Stallworth, P.A.

Suite 510

500 South Florida Avenue

Lakeland, Florida 33805

(Certified Mail No. 7012 3050 0001 0076 3928)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Off ice Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7012 3050 0001 0076 3935)

Susan M. Wilson, Esquire

Wicker, Smith, O'Hara, McCoy

and Ford, P.A.

Suite 1800

100 North Tampa Street

Tampa, Florida 33602

(Certified Mail No. 7012 3050 0001 007 6 3942)

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

(Certified Mail No. 7012 3050 0001 0076 3959)

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. 7012 3050 0001 0076 3966)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certifi ed Mail No. 7012 3050 0001 0076 3973)

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

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be re viewed, 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

19 92).