13-002796N Jeffery And Meredith Farnum, On Behalf Of And As Parents And Natural Guardians Of Zackary K. Farnum, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 19, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFERY AND MEREDITH FARNUM, on

behalf of and as parents and

natural guardians of ZACKARY K.

FARNUM, a minor,

Petitioners,

vs. Case No. 13 - 2796N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATIO N,

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

August 18 , 2014.

STATEMENT OF THE CASE

On July 10, 2 013, Petitioners, Jeffery and Meredith Farnum,

on behalf of and as parents and natural guardians of Zackary K.

Farnum, a minor, filed a Petition for Benefits 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 Dr. Amy

Millio n as the physician providing obstetrical services at the

birth of Zackary on August 11, 2008, at North Florida Regional

Medical Center located in Gainesville, Florida.

DOAH served NICA with a copy of the Petition on July 26,

2013. On September 26, 2013, D OAH received a return receipt from

the United States Postal Service showing that North Florida

Regional Medical Center had been served with a copy of the

Petition. DOAH served a copy of the Petition on Dr. Million on

July 29, 2013.

On August 18, 2014, NIC A filed a Motion for Summary Final

Order, asserting that Zackary did not sustain a Ðbirth - related

neurological injuryÑ as that term is defined in section

766.302(2), Florida Statutes. The Motion was served by United

States Mail on August 18, 2014.

An Ord er to Show Cause was entered on September 3, 2014,

advising the Petitioners to show cause in writing why

Respondent's Motion for Summary Final Order should not be

granted. To date, no response has been filed.

FINDINGS OF FACT

1. Zac k ary K. Farnum was bo rn on August 11, 2008, at North

Florida Regional Medical Center in Gainesville, Florida. Zac k ary

weighed 3,620 grams at birth.

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

to review the medical records for Zackary to determine whether an

in jury occurred in the course of labor, delivery, or

resuscitation 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 - deliver y period. Dr. Willis described his

findings as follows in his medical report:

In summary, labor was induced at term due to

rupture of the membranes. A prolonged FHR

deceleration, lasting about 4 minutes

occurred at about five hours prior to birth.

Howev er, the baby was not depressed after

birth with a normal Apgar score of 8 by five

minutes and a normal cord blood pH of 7.29.

The newborn hospital course was not

complicated by multisystem organ failure,

which is commonly seen with birth asphyxia.

The ba by had some initial difficult feeding

and one episode of arching of the back was

noted. Clinical findings were no [ sic ]

substantial enough to require further

evaluation, such as EEG or MRI. Overall,

review of the medical records does not

clearly identify a hypoxic event during labor

or delivery that would have resulted in

substantial brain injury.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery or the immediate post d elivery

period.

3. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny) ,

a pediatric neurologist, to examine Zackary and to review his

medical records. Dr. Duchowny examined Zac k ary on May 21, 2014,

and opined as follows in his medical report:

In summ ary, Zackary's neurological

examination reveals evidence of left - sided

motor findings including left hemihypo trophy,

left mild spastic weakness, and left

hyperreflexia with a left Babinski sign.

Despite these findings, he is able to

accomplish most tasks reasonably well and is

well - adjusted to his motor deficits. His

cognitive functioning is appropriate for age,

although he is behaviorally overactive and

impulsive. His speech dysarthria is likely

developmentally based. Medical records

confirm the parent al history of a difficult

delivery. Zack's Apgar scores were 2 and 8

at 1 and 5 minutes and there was evidence of

thick meconium. A tight nuchal cord was

removed at birth. The neonatal course was

subsequently benign.

I am familiar with the Florida Birt h - Related

Neurological Injury Compensation Plan (the

"Plan") and the standards imposed by the Plan

for compensability of potential claims.

Based upon my review of the medical records

as described herein and in my report, and

further based upon my evaluati on of ZACKARY

FARNUM, I have formed an opinion as to

whether ZACK A RY FARNUM qualifies for

compensation under the plan.

I regard Zack's motor difficulties as mild to

moderate and his evaluation today does not

provide evidence for a substantial mental

impai rment. I suspect that his right

hemisphere stroke was acquired in utero but I

have not had an opportunity to personally

review the MR images. However, Zackary does

not have a substantial mental impairment. I

therefore believe that he should not be

consi dered for inclusion within the NICA

program.

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

have been no expert opinions filed that are contrary to the

opinion of Dr. Willis that there was no apparent obstetrical

event that resulted in loss of o xygen or mechanical trauma to the

babyÓs brain during labor, delivery or the immediate post

delivery period. Dr. WillisÓ opinion is credited.

5. There are no contrary expert opinions filed that are

contrary to Dr. DuchownyÓs opinion that Zac k ary does n ot have a

substantial mental or physical impairment. Dr. DuchownyÓs

opinion is credited.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.31 6, Fla. Stat.

7 . 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. St at.

8 . 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,

whi ch 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

inju ry." § 766.305(4), Fla. Stat.

9 . 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 1 20, Florida Statutes.

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

10 . 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 -

re lated 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 injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a parti cipating 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 re suscitation 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 ser vices

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 1 . 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 c ord 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, deli very, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

1 2 . The evidence, which is not refuted, established that

Zac k ary did not sustain an injur y 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 and that Zac k ary does not have a permanent

and substantial mental or physical impairment. Therefore,

Zac k ary 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 Jeffery and

Meredith Farnum, on behalf of and as parents an d natural

guardians of Zackary K. Farnum, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 1 9 th day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Divisio n 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 1 9 t h day of Septemb er , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7014 1200 0002 3337 719 8 )

Meredith Farnum

Jeffrey Farnum

4338 Northwest 25th Terrace

Gainesville, Florida 32605

(Certified Mail No. 7014 1200 0002 3337 7365)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(Certified Mail No. 7014 1200 0002 3337 7006)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 1200 0002 3337 7013)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 1200 0002 3337 7020)

North Florida Regional Medical Center

Attent ion: Risk Management

6500 Newberry Road

Gainesville, Florida 32605

(Certified Mail No. 7014 1200 0002 3337 7211)

Amy Million, M.D.

6440 West Newberry Road, Suite 502

Gainesville, Florida 32605

(Certified Mail No. 7014 1200 0002 3337 7372)

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 Proced ure. Such proceedings are

commenced by filing the original notice of administrative appeal

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 pre scribed 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).