13-001653N Tondra Whited, On Behalf Of And As Parent And Natural Guardian Of Zacari Porter, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 17, 2013.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONDRA WHITED, on behalf of and

as parent and natural guardian

of ZACARI PORTER, a minor ,

Petitioner ,

vs. Case No. 13 - 1653N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

WI NSTON BLISS, M.D., SUNLIFE

OB/GYN SERVICES OF FORT

LAUDERDALE, AND PLANTATION

GENERAL HOSPITAL LIMITED

PARTNERSHIP, d/b/a PLANTATION

GENERAL HOSPITAL,

Intervenors .

/

SUMMARY FINAL ORDER OF DI SMISSAL

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

September 1 1 , 2013.

STATEMENT OF THE CASE

On May 3, 2013, Petitioner, To ndra Whited, on behalf of and

as parent and natural guardian of Zacari Portor (Zacari), a

minor, filed a Petition U nder Protest Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH) for a determi nation of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

The Petition named Dr. Shirley Cam p bell - Mogg and Dr. Winston

O. Bliss as the physicians providing obstetric services at the

birth of Zacari at Plantatio n General Hospital located in

Plantation, Florida.

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

On May 29, 2013, Dr. Bliss and Sunlife OB/GYN Services of Fort

Lauderdale filed a Motion to Intervene, which was granted by

Order dated June 1 1, 2013. On June 11, 2013, Plantation General

Hospital Limited Partnership , d/b/a Plantation General Hospital

filed Plantation General HospitalÓs Motion for Leave to Intervene

Pursuant to Florida Administrative Code Rule 28 - 106.205, which

was granted by O rder dated June 25, 2013. DOAH served a copy of

the Petition on Dr. Cam p bell - Mogg on July 12, 2013. As of the

date of this Summary Final Order of Dismissal, Dr. Cam p bell - Mogg

has not petitioned to intervene in this proceeding.

On September 11, 2013, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

As of the date of this Summary Final Order of Dismissal

neither Petition er nor Intervenors have filed a response to the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Zacari was born on April 2, 2011, at Plantation General

Hospital located in Plantation, Florida. Zacari weighed eight

pounds two ounces at birth.

2. NICA retained Donald Willis, M.D. , as it medical expert

specializing in maternal - fetal medicine. In an affidavit dated

September 6, 2013, Dr. Willis opined as follows:

It is my opinion that labor was indicated at

39 weeks with no fetal distress during labor.

Spontaneous vaginal birth resulted in a

healthy baby with Apgar scores of 9/9. The

newborn hospital course was uneventful.

As such, it is my opinion that 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.

Further, in that there was no oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery or

resuscitation in the immediately post -

delivery period in the Ho spital, then

accordingly, there was no causal event which

would have rendered Zacari Porter permanently

and substantially mentally and physically

impaired as a result of same.

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

expert in pediatric neurology. Dr. Duchowny examined Zacari on

July 17, 2013, and reviewed his medical records. In an affidavit

dated September 4, 2013, Dr. Duchowny opined as follows:

It is my opinion that, in summary, ZacariÓs

neurological examination is significant only

for expressive language delay. In contrast,

he has well - developed motor abilities, both

gross and fine motor skills and has no focal

or lateralizing findings.

I had an opportunity to review medical

records that were sent on June 27, 2013. The

records d ocument a relatively uncomplicated

perinatal and postnatal course without

evidence of either mechanical injury or

oxygen deprivation to the brain or spinal

cord.

The record review together with todayÓs

neurological exam reveals developmentally

appropriate motor function and only a mild

expressive language delay which suggest that

Zacari does not have either a substantial

mental or physical impairment. I therefore

believe that Zacari should not be considered

for inclusion within the NICA program.

As such, it is my opinion that Zacari is not

permanently and substantially mentally

impaired nor is he 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 in the hospital during the birth of

Zacari Porter.

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

to the opinions of Dr. Willis and Dr. Duchowny that Zacari does

not have a substantial and permanent mental and physical

im pairment due to lack of oxygen or mechanical trauma during

labor, delivery, or the immediate post - delivery period are

credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of t hese 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 Jan uary 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), a nd 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 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 neurological 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 instant case, the dispute

must be resolved by the assigned administrative law judge in

accorda nce with the provisions of chapter 120, Florida Statutes.

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

9. In discharging this responsibility, the a dministrative

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

available evidence:

(a) Wheth er 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

inj ury 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 certified nurse midwife in

a teaching hospital supervised by a

participating physician in t he 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 concludes that the "infant has sustained

a birth - related neurologi cal injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

10. The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - related neurological injury" me ans

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 occ urring 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.

11. The evidence, which is not refuted, established th at

Zacari Porter is not permanently and substantially mentally

impaired nor is he 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. Therefore, Zacari 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 Tondra Whited, on

behalf of and as parent and natural guardian of Zacari Porter, is

dismissed with prejudice.

DONE AND ORDERED this 17th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

Th e 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 17th day of October , 2013 .

COPIES FURNISHED:

( V i a 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 0000 0076 4116)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7012 3050 0000 0076 4123)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 3050 0001 0076 4130)

Julia M. Ingle, Esquire

Lubell and Rosen, LLC

200 South Andrews Avenue , Suite 602

Fort Lauderdale, Florida 33301

(Certified Mail No. 7012 1010 0001 8358 3664)

Rachel T. Davant, Esquire

Billing, Cochran Lyles, Mauro & Ramsey, P A

515 East Las Olas Boulevard

SunTrust Center, Sixth Floor

Fort Lauderdale, Florida 33301

(Certified Mail No. 7012 1010 0001 8358 3671)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahass ee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8358 3688)

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 83 58 3695)

Shirley Campbell - Mogg, M.D.

4101 Northwest 4th Street , Suite 200

Plantation, Florida 33317

(Certified Mail No. 7012 1010 0001 8358 3701)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

b y 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).