13-002114N Te?Yani Albury, A Minor, By And Through Her Natural Parents And Legal Guardians, Katreka Washington And Thomas Albury; And Katreka Washington And Thomas Albury, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 4, 2013.

Summary: Infant did not sustain an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TEÓYANI ALBURY, a minor, by and

through her natural parents and

legal guardians, KATREKA

WASHINGTON and THOMAS ALBURY;

and KATREKA WASHINGTON and

THOMAS ALBURY, Individually ,

Petitioners ,

vs. Case No. 13 - 2114N

FLOR IDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

September 19, 2013.

STATEMENT OF THE CASE

On June 10, 2013, Petitioners, Katreka Washington and

Thomas Albury, individually and on behalf of and as parents and

nat ural guardians of TeÓYani Albury (TeÓYani), a minor, filed a

Petition for Compensation Pursuant to Florida Statute Section

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

Hearings (DOAH) for a determination of compensability under the

Florid a Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Mark Tomback, M.D. , and

Sandria Fearon - Hardy as the physicians providing obstetric

services at the birth of TeÓYani at Plantation General Hospital

in Plantation, Florida.

DOA H served NICA with a copy of the Petition on June 14,

2013. Dr. Tomback was served a copy of the Petition on June 17,

2013. Dr. Fearon - Hardy and Plantation General Hospital were

served copies of the Petition on September 23, 2013. As of the

date of this Summary Final Order of Dismissal, Dr. Tomback,

Dr. Fearon - Hardy, and Plantation General Hospital have not

petitioned to intervene.

NICA filed a Motion for Summary Final Order, asserting that

TeÓYani did not sustain a "birth - related neurological injury" a s

that term is defined in section 766.302(2), Florida Statutes.

The motion was served by e mail on September 19, 2013. As of the

date of this Summary Final Order , Petitioners have not filed a

response. However, in a Response to Order of September 3, 2013 ,

NICA advised that Petitioners did not dispute that their claim

was not compensable under the NICA Plan.

FINDINGS OF FACT

1. TeÓYani was born on April 26, 2012, at Plantation

General Hospital located in Plantation, Florida. TeÓYani weighed

3,505 grams a t birth.

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

to review the medical records for TeÓYani. In an affidavit dated

September 16, 2013, Dr. Willis opined the following:

It is my opinion that the medical records

suggest that baby did not suffer significant

oxygen deprivation during labor or delivery.

Anemia due to blood loss occurred just prior

to delivery and the newborn anemia resulted

in oxygen deprivation and multisystem

failure. However, there are no studies to

indicate the oxygen d eprivation resulted in

brain damage.

As such, it is my opinion that there was an

apparent obstetrical event that occurred

prior to delivery that caused anemia. The

anemia resulted in oxygen deprivation during

the immediate post delivery period. There is

no documentation in the medical records to

suggest the oxygen deprivation resulted in

brain damage.

3. Michael S. Duchowny, M.D., a pediatric neurologist, was

retained by NICA to examine TeÓYani. Dr. Duchowny examined

TeÓYani on August 14, 2013. In an affidavit dated September 18,

2013, Dr. Duchowny opined as follows:

It is my opinion that TeÓYaniÓs neurological

examination disclosed no significant

findings. She is functioning at age level

with respect to her mental and physical

abilities and there is little evidence of

left - sided motor disability.

I had an opportunity to review medical

records which were sent to me on June 27,

2103, and supplementary records faxed on

July 2013. The records document Te - YaniÓs

[sic] birth at Plantation General Hospita l

which was complicated by vaginal bleeding

thought to represent placental abruption or a

velamentous insertion. TeÓYani was born at

30 weeks gestation and weighed 7 pounds 12

ounces at birth. Her Apgar scores were 4, 5,

and 7 at 1, 5, and 10 minutes. A rterial

blood gases revealed a pH of 7.17 and a base

excess of - 17.2. TeÓYani breathed initially

then became cyanotic and apneic and required

assisted ventilation with CPAP bag and mask.

Her neonatal course was complicated by anemia

and thrombocytopenia which required

transfusions. She was placed on a

hyperthermia protocol for three days.

Suspected sepsis and pneumonia were both

treated vigorously with antibiotics.

Cultures were remarkable.

As such, it is my opinion that TeÓYaniÓs

normal neurological status documents that she

is not suffering from either a permanent or

substantial mental or physical impairment.

For this reason, I do not recommend that she

be considered for compensation with the NICA

program.

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

to those of Dr. Willis and Dr. Duchowny. The opinions of

Dr. Willis and Dr. Fernandez that TeÓYani did not suffer a brain

injury due to oxygen deprivation during labor and delivery are

credited. Dr. DuchownyÓs opinion that TeÓYani does not have

substantial and permanent mental and physical impairments is

credited.

CONCLUSIONS OF LAW

5. The Division 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 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 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

accordance with the provisions of chapter 120, Florida Statute s.

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 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 i mpaired, 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 resuscita tion

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, 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 neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 7 66.31(1), Fla. Stat.

10. 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 g estation 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.

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

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

deprivation occurring in the cour se of labor, delivery, or

resuscitation in the immediate post - delivery period in a

hospital. The evidence also established that TeÓYani does not

suffer from substantial and permanent mental and physical

impairments. Therefore, TeÓYani 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 Katreka Washington

and Thomas Albury, individually and as parents and natural

guardians of TeÓYani Albury is dis missed with prejudice.

DONE AND ORDERED this 4th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 4 th 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. 7013 1090 0002 4070 7984)

Linda A. Alley, Esquire

Sheldon J. Schlesinger, P. A.

1212 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 7013 1090 0002 4070 7991)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7013 1090 0002 4070 8004)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 1090 0002 4070 8011)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency f or Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 1090 0002 4070 8028)

Plantation General Hospital

Attention: Risk Management

401 Northwest 42nd Avenue

Plantation, Florida 33317

(Certifie d Mail No. 7013 1090 0002 4070 8035 )

Sandria Fearon - Hardy, CNM, ARNP

4105 Pembroke Road

Hollywood, Florida 33021

(Certified Mail No. 7013 1090 0002 4070 8042 )

Sandria Fearon - Hardy, CNM, ARNP

Sunlife OBGYN Services

4101 Northwest 4th Street, Suite 306

Plantation, Florida 33317

(Certified Mail No. 70 12 3050 0001 0076 3904 )

Mark Tomback, M.D.

4101 Northwest 4th Street, Suite 306

Hollywood, Florida 33021

(Certified Mail No. 7012 3050 0001 0076 38 98 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review o f 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

commence d 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 t he 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).