13-002709N Sylvie Simon, Individually And On Behalf Of Elijah S. Smith, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 30, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVIE SIMON, individually and

on behalf of ELIJAH S. SMITH, a

minor,

Petitioner,

vs. Case No. 13 - 2709N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH , INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES, AMANPREET S. BHULLER,

M.D., AND CHERISE CHAMBERS,

M.D.,

Intervenor s .

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consid eration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on May 1,

2014, and a Renewed Motion for Summary Final Order filed by NICA

on May 27, 2014.

STATEMENT OF THE CASE

On July 18, 2013, Petitioner, Sylvie Simon, individually and

on behalf of Elijah S. Smith (Elijah), a minor, filed a Petition

Under Protest 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 Cherise Chambers, M.D., and Amanpreet Bhull e r,

M.D., as the physicians providing obstetrical services at the

birth of El ijah on May 27, 2011, at Orlando Health, Inc. , d/b/a

Winnie Palmer Hospital for Women & Babies located in Orlando ,

Florida.

DOAH served NICA with a copy of the Petition on July 22,

2013. DOAH served a copy of the Petition on Winnie Palmer

Hospital for Wom en & Babies on July 23, 2013.

On August 12, 2013, Orlando Health, Inc. , d/b/a Winnie

Palmer Hospital for Women & Babies, Dr. Bhuller, and Dr. Chambers

filed a Petition to Intervene, which was granted by Order dated

September 3, 2013.

On May 1, 2014, NICA filed a Motion for Summary Final Order,

asserting that Elijah did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On May 27, 2014, NICA filed a

Renewed Motion for Summary Final Order, rep resenting that

Petitioner and Intervenors had agreed to an order being entered

granting the Renewed Motion for Summary Final Order.

FINDINGS OF FACT

1. Elijah S. Smith was born on May 27, 2011, at Orlando

Health, Inc. , d/b/a Winnie Palmer Hospital for W omen & Babies in

Orlando, Florida. Elijah weighed 3,266 grams at birth.

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

to review the medical records for Elijah, to determine whether an

injury occurred in the course of labor, delivery, or

resu scitation in the immediate post - delivery period in the

hospital due to oxygen deprivation or mechanical injury occurring

in the course of labor, delivery, or resuscitation in the

immediate post delivery period. Dr. Willis described his

findings as follows :

In summary, labor was complicated by an

abnormal FHR pattern and a prolonged second

stage of labor. Cesarean section delivery

was required. The baby was depressed with

low Apgar scores at one and five minutes.

Bag and mask ventilation was required for

over 5 minutes. Seizure activity developed

at about 36 hours after birth. EEG and MRI

were consistent with brain injury.

The cord pH was just above 7.0. However, no

base excess was recorded and there was no

clear identification as to the blood being

a rterial or venous. Overall, the clinical

findings are consistent a [sic] birth related

oxygen deprivation and brain injury. The

cord blood pH of 7.1 does not alter this

opinion.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs

brain during labor, delivery, and continuing

into the immediate post delivery period. The

oxygen deprivation resulted in brain injury.

I am unable to comment about the severity of

the brain injury.

3. NICA retained Raymond J. Fernandez, M.D. , a pediatric

neurologist, to examine Elijah and to review his medical records.

Dr. Fernandez examined Elijah on April 8, 2014, and gave the

following opinion:

There is evidence in the medical record for

hypoxic ischemic perinatal brain injury, but

no evi dence at this time for substantial

motor or mental impairment. ElijahÓs motor

examination is normal. There is evidence of

speech delay, but he is improving and I

expect this trend to continue. Learning

difficulty in the future is a possibility

that is i ndeterminate at this time.

4. A review of the file in this case reveals that there

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis and Dr. Fernandez that there was an

obstetrical event that resulted in loss of oxygen to the brain.

Their opinions are credited. There are no contrary expert

opinions filed that are contrary to Dr. FernandezÓs opinion that

there is no evidence for a substantial motor or mental

impairment. Dr. FernandezÓs opinion 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 s eek 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 clai m, 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 Statutes.

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

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 impaired, a

rebuttable presumption shall ar ise 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 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."

§ 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 ges tation, 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 permane ntly and substantially mentally

and physically impaired.

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

Elijah did sustain an injury to the brain caused by oxygen

deprivation occurring in the course of labor, delivery, and

resuscitation in the immediate post - delivery period in a

hospital. The evidence does not establish that the brain injury

resulted in permanent and substantial mental and physical

impairments. Therefore, Elijah is not eligible for benefits

under the Plan.

CONCLUSION

Based u pon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Sylvie Simon,

individually and on behalf of Elijah S. Smith, is dismissed with

prejudice.

DONE A ND ORDERED this 30th day of May , 2014 , 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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of May , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Associati on

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7013 2630 0000 4299 4437 )

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7013 2630 0000 4299 4444 )

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman, and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

( Certified Mail No. 7013 2630 0000 4299 4451 )

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigma n, and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

( Certified Mail No. 7013 2630 0000 4299 4468 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bi n C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4299 4475)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7 013 2630 0000 4299 4482)

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 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).