13-002901N Adriana And Cody Pillow, On Behalf Of And As Parents And Natural Guardians Of Landon Pillow, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 16, 2014.

Summary: Child 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, and resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADRIANA AND CODY PILLOW, on

behalf of and as parents and

natural guardians of LANDON

PILLOW, a minor,

Petitioners,

vs. Case No. 13 - 2901N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

MICHAEL COTTER, M.D., NORTH

FLORIDA WOMAN CARE, d/b/a

GAINESVILLE OB/GYN, AND NORTH

FLORIDA REGIONAL MEDICAL CENTER,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This c ause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on July 7,

2014, and served by electronic mail on July 4 , 2014.

STATEMENT OF THE CASE

On Ju ly 16, 2013, Petitioners, Adriana Pillow and

Cody Pillow, on behalf of and as parents and natural guardians of

Landon Pillow (Landon), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (Petition)

with the Division o f Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

Michael B. Cotter, M.D., as the physician providing obstetrical

services at the birth o f Landon on November 29, 2010, at North

Florida Regional Medical Center located in Gainesville, Florida.

DOAH served NICA with a copy of the Petition on August 6,

2013. DOAH served a copy of the Petition on Dr. Cotter on

August 8, 2013. DOAH served a cop y of the Petition on North

Florida Regional Medical Center on August 8 , 2013.

On October 7, 2013, Dr. Cotter and North Florida Woman Care ,

d/b/a Gainesville OB/GYN filed a Petition for Leave to Intervene,

which was granted by Order dated October 16, 2013. On

October 29, 2013, North Florida Regional Medical Center filed an

Amended Petition to Intervene, which was granted by Order dated

November 7, 2013.

On July 7, 2014, NICA filed a Motion for Summary Final

Order, asserting that Landon did not sustain a "b irth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On June 12, 2014, North Florida

Regional Medical Center filed a Response to Order dated May 21,

2014, and stated that it did not take a formal position with

regard to NICAÓs position that the claim was not compensable. On

June 4, 2014, Petitioners filed a Response to Order dated May 21,

2014, stating that Petitioners did not see a need for a hearing

to determine whether the claim was compensable and waived a

hearing on whether the claim was compensable.

The Motion for Summary Final Order was served by electronic

mail on July 4 , 2014. Other than the responses to the Order

dated May 21, 2014, requiring the parties to advise the

undersigned of hearing dates f or a final hearing, none of the

parties have filed a response to the Motion for Summary Final

Order.

FINDINGS OF FACT

1. Landon Pillow was born on November 29, 2010, at North

Florida Regional Medical Center in Gainesville, Florida. Landon

weighed 3,500 grams at birth.

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

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

injury occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

ho spital 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, there was a non - reassuring FHR

pattern duri ng labor. It is unlikely this

resulted in any significant oxygen

deprivation to the fetus, based on a cord

blood gas pH > 7.0 and a normal newborn

hospital course. Babies with birth related

hypoxic brain injury will generally have

multi - organ failures du ring the newborn

period.

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.

3. Dr. Willis reviewed additional medical records on

January 16, 2014, and, based on his review of those records,

opined as follows:

The additional records do not change any of

my opinions concerning this case. The child

suffered a brain injury, but the etiology is

still undetermined. Based on the cord b lood

gas pH > 7 and a normal newborn hospital

course after delivery, it does not seem

reasonable to time the brain insult as birth

related.

4. NICA retained Michael S. Duchowny, M.D., to examine

Landon and to review his medical records. Dr. Duchowny exa mined

Landon on April 30, 2014, and gave the following opinion:

In summary, LandonÓs neurological examination

today was extremely limited because of his

postictal state. However, there were no

specific focal or lateralizing findings

despite the history of a left hemisphere

infarct and porencephalic cavity.

A review of medical records sent on

February 26, 2014 confirms the history

obtained today which revealed no evidence of

a neurological injury to the brain or spinal

cord due to oxygen deprivation or mec hanical

injury in the course of labor, delivery, or

the immediate postnatal period. LandonÓs

cord blood pH was 7.25 and the base excess

was - 4. Both values are near - normal.

Although the neurological examination was

suboptimal, the history obtained today from

the family and from medical records indicate

that LandonÓs neurological impairment was

acquired prenatally. I therefore believe

that he should not be considered for

compensation within the NICA program.

5. A review of the file in this case revea ls that there

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis and Dr. Duchowny that there was no

obstetrical event that resulted in injury to the brain or spinal

cord due to oxygen deprivation or mechanical injury during labor,

delivery or the immediate post - delivery period. Their opinions

are 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 - 766.316, Fl a. 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. Stat.

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,

which ad ministers 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.

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 120, F lorida 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 -

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

rend ered 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 participat ing 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 resusci tation 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.

11. 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 o f 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.

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

Landon did not sustain an injury to t he brain or spinal cord

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, and resuscitation in the immediate

post - delivery period in a hospital. Therefore, Landon is not

eligible for benefits under the Plan.

CON CLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Adriana Pillow and

Cody Pillow, on behalf of and as parents and natural guardians of

Landon Pillow, is dismissed with prejudice.

DONE AND OR DERED this 16th day of July , 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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of July , 2014 .

COPIES FURNISHED:

(via certified mail)

David Ryan Best, Esquire

Best Law Firm Florid a, P.A.

Post Office Box 3306

Orlando, Florida 32802

( Certified Mail No. 7014 0150 0002 0386 0476 )

David R. Kuhn, Esquire

Rissman, Barrett, Hurt

Donahue and McLain, P.A.

15th Floor

201 East Pine Street

Orlando, Florida 32802

( Certified Mail No. 7014 0150 0002 0386 0483 )

Richard B. Schwamm, Esquire

Haliczer Pettis and Schwamm

Suite 475

225 East Robinson Street

Orlando, Florida 32801

( Certified Mail No. 7014 0150 0002 0386 0490 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7014 0150 0002 0386 0506)

M. Mark Bajalia, Esquire

Bajalia, Sanders and Bajalia, P.A.

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 3 2256

( Certified Mail No. 7014 0150 0002 0386 0513 )

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 0150 0002 0386 0520)

Elizabeth Dude k, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 0150 0002 0386 0537)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an admi nistrative 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 Co urt 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).