13-002446N Antonia Osceola, A Minor, By And Through His Parents And Natural Guardians, Leah Osceola And Miguel Albarran, And Leah Osceola And Miguel Albarran, Individually vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 4, 2013.

Summary: Child did not sustain injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivey, or resuscitation in the immediate postdelivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONIA OSCEOLA, a minor, by and

through his parents and natural

guardians, LEAH OSCEOLA and

MIGUEL ALBARRAN, and LEAH

OSCEOLA and MIGUEL ALBARRAN,

individually ,

Petitioners ,

vs. Case No. 13 - 2446N

FLORIDA BIRTH - RE LATED

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 Responden t, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

September 23, 2013.

STATEMENT OF THE CASE

On June 28, 2013, Petitioners, Leah Osceola and

Miguel Albarran, individually and on behalf of and as parents and

natural guardians o f Antonia Osceola (Antonia), 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

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Robert C. Siudmak, M.D., and Maria C.

Zedan, C.N.M., as the physician and midwife providing obstetric

services at the birth of Antonia at Plantation General Hospital

in Plantation, Florida.

DOAH served NICA and Plantation General Hospital with copies

of the Petition on July 5, 2013. Dr. Siudmak and Ms. Zedan were

served copies of the Petition on July 8, 2013. As of the date of

this Summary Final Order of Dismissal, Dr. Siudmak, Ms. Zedan,

and Plantation General Hospital have not petitioned to intervene.

NICA filed a Motion for Summary Final Order, asserting that

Antonia did not sustain a "birth - related neurological injury" as

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

T he motion was served by Email on September 23, 2013. As of the

date of this Summary Final Order of Dismissal , Petitioners have

not filed a response. However, in a Response to Order of

September 13, 2013, NICA advised that Petitioners did not dispute

that their claim was not compensable under the NICA Plan.

FINDINGS OF FACT

1. Antonia was born on March 14, 2012, at Plantation

General Hospital located in Plantation, Florida. Antonia weighed

3,665 grams at birth.

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

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

September 19, 2013, Dr. Willis opined the following:

It is my opinion that the pregnancy was

complicated by poorly controlled Diabetes

with a large - for - gestational age baby and

resulting in dystocia at delivery. The baby

was depressed at birth, but Ðrapidly

improved.Ñ The baby suffered a brachial

plexus injury from the shoulder dystocia, but

there was no evidence of brain injury.

As such, it is my opinion that delivery wa s

complicated by a shoulder dystocia with

resulting brachial plexus injury. However,

there was no apparent brain or spinal cord

injury from loss of oxygen or mechanical

trauma.

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

retained by NICA to examine Antonia. Dr. Duchowny examined

Antonia on August 28, 2013. In an affidavit dated September 18,

2013, Dr. Duchowny opined as follows:

It is my opinion that AntoniaÓs neurological

examination reveals evidence of a complete

left brachial plexus p alsy involving nerve

roots C5 to T1. She thus has both an ErbÓs

and KlumpkeÓs paralysis which is judged to be

severe. There appears to be little benefit

from her previous surgery as she most likely

had an avulsive type injury. In contrast,

AntoniaÓs cog nitive status and motor ability

in her other three extremities are well

preserved.

I had an opportunity to fully review the

medical records that were sent on July 25,

2013. The records confirm the familyÓs

history of shoulder dystocia at birth.

AntoniaÓ s Apgar scores were 0, 6 & 8 at 1, 5

and 10 minutes. Her brachial plexus palsy

was recognized immediately. She was

intubated in the delivery room but extubated

at 10 minutes of age. Of note, an MRI of

AntoniaÓs brachial plexus performed on

June 29, 2012 [,] revealed pseudomeningocele

formation at the C7 and T1 levels.

As such, it is my opinion that AntoniaÓs

brachial plexus palsy places her damage

outside the central nervous system as it

involves cervical and upper thoracic root

segments. Although her i njury was likely

acquired as a result of mechanical forces

during delivery, the location of her

impairment is outside the central nervous

system (brain and spinal cord). I therefore

believe that Antonia should not be considered

for compensation with the N ICA 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. Duchowny that Antonia did not suffer a brain

or spinal cord injury due to oxygen deprivation or mechanic al

injury during labor, delivery, and resuscitation during the 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 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. NI CA,

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 neurologic al

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 ju dge 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 ch apter 120, Florida Statutes.

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 clai mant

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. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of lab or, 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 the course of

labor, delivery, or resuscitation in the

immediate postdelive ry 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."

§ 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" 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.

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

Antonia 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 resuscitation in the immediate

post - delivery period in a hospital. Therefore, Antonia 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 Leah Osceola and

Miguel Albarran, individually and as parents and natural

guardians of Antonia Osceola is dismissed 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 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 4th 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 3805)

Linda A. Alley, Esquire

Sheldon J. Schlesinger, P.A.

1212 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

(Cer tified Mail No. 7012 3050 0001 0076 3812)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 3050 0001 0076 3829)

Amie Rice, Investigation Manager

Consumer Services Unit

De partment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0001 0076 3836)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Talla hassee, Florida 32308

(Certified Mail No. 7012 3050 0001 0076 3843)

Plantation General Hospital

Attention: Risk Management

401 Northwest 42nd Avenue

Fort Lauderdale, Florida 33317

(Certified Mail No. 7012 3050 0001 0076 3850)

Robert C. Siudmak, M .D.

3801 Hollywood Boulevard , Suite 250

Hollywood, Florida 33021

(Certified Mail No. 7012 3050 0001 0076 3867)

Maria C. Zedan, C.N.M.

3801 Hollywood Boulevard , Suite 250

Hollywood, Florida 33021

(Certified Mail No. 7012 3050 0001 0076 3874)

NO TICE 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 Appellat e 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).