13-003715N Khai Nguyen, Individually And As Personal Representative Of The Estate Of Maituyet Nguyen, And On Behalf Of As Parent Of Kaden Nguyen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, May 1, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KHAI NGUYEN, Individually and as

Personal Representative of the

Estate of MAITUYET NGUYEN, and

on behalf of as Parent of KADEN

NGUYEN, a minor,

Petitioner,

vs. Case No. 13 - 3715N

FLORIDA BIRTH - RELATED

NEUROLOGIC AL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order filed by Respondent , Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on April 21, 2014.

STATEMENT OF THE CASE

On September 23, 2013, Petitioner, Khai Nguyen, individually

and a s Personal Representative of the Estate of Maituyet Nguyen,

and on beha lf and as parent of Kaden Nguyen (Kaden), 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 Bir th - Related Neurological

Injury Compensation Plan (Plan). The Petition named Alex Birman,

M.D., and Georges Edouard, M.D., as the physicians providing

obstetric services at the birth of Kaden at Plantation General

Hospital in Plantation, Florida.

DOAH serv ed NICA with a copy of the Petition on

September 27, 2013. DOAH served a copy of the Petition on

Plantation General Hospital on September 30, 2013. DOAH served a

copy of the Petition on Dr. Edouard on October 7, 2013. On

October 1, 2013, NICA served a c opy of the Petition on

Dr. Birman. As of the date of the Summary Final Order of

Dismissal, no petitions to intervene in this proceeding have been

filed by Dr. Birman, Dr. Edouard, or Plantation General Hospital.

On April 21, 2014, NICA filed a Motion for Summary Final

Order, asserting that Kaden did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes (2012) . Petitioner did not file a

response to the motion for summary final order.

FINDINGS OF F ACT

1. Kaden Nguyen was born on July 26, 2012, at Plantation

General Hospital and weighed 3,827 grams at birth.

2. NICA retained Donald Willis, M.D., to review the medical

records for Kaden. After reviewing the records, Dr. Willis

opined as follows:

In summary, the mother suffered a cardiac

arrest during labor due to a suspected

amniotic fluid embolism and could not be

resuscitated. Fetal oxygen deprivation

resulted from maternal cardiac arrest, as

reflected by fetal bradycardia. Emergency

Cesarean se ction was done while maternal CPR

continued. The baby was depressed at birth

and continued to develop worsening

respiratory distress. Despite the obvious

lack of oxygen, there was no seizure activity

and the MRI on DOL 17 was normal.

There was an obstet rical event that resulted

in loss of oxygen to the babyÓs brain during

labor, delivery, and continuing into the

immediate post delivery period. However, the

oxygen deprivation did not result in any

significant brain injury. The lack of

significant brain injury is based primarily

on the normal MRI on DOL 17, absence of any

seizure activity and age appropriate

developmental milestones achieved at 9 months

of age.

3. Michael Duchowny, M.D. (Dr. Duchowny), was requested by

NICA to do an independent medical evaluation of Kaden.

Dr. Duchowny examined Kaden on February 12, 2014. Based on his

examination, Dr. Duchowny opined the following:

In summary, KadenÓs neurological examination

reveals no specific focal or lateralizing

findings. He does not evidence any motor or

mental impairment and his growth and

development are proceeding satisfactorily.

I had an opportunity to review medical

records which were sent to me on December 5,

2013 which documented the catastrophic

perinatal course. Of note, head ultrasoun d

examinations performed on July 28 th and 30 th ,

2012 were within normal limits. No further

neuroimaging studies were undertaken.

As KadenÓs neurological examination is normal

today, I do not believe that he should be

considered for acceptance into the NI CA

program.

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

to the opinions of Dr. Willis and Dr. Duchowny that Kaden did not

have a brain injury that resulted in permanent and substantial

physical and mental impairments. The opinions of Dr. Willis and

Dr. Duchowny 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 rep resentative,

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 determi nes 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), Fl a. 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 Statutes.

§§ 766.304, 766.309, and 766 .31, Fla. Stat.

9. 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 demo nstrated, 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 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 a t 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 postdeliver y

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Kaden does not have a permanent and substantial motor or mental

impairment; thus, K aden has not sustained a birth - related

neurological injury because he is not permanently and

substantially physically impaired. Therefore, Kaden is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Con clusions of

Law, it is ORDERED that the Petition is dismissed with prejudice.

DONE AND ORDERED this 1st 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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May , 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. 7013 2630 0000 4300 7471)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7013 2630 0000 4300 7488 )

M. Mark Bajalia, Esquire

Bajalia, Sanders and Bajalia, P.A.

Suite 301

11512 Lake Mead Avenue

Jacksonville , Florida 32256

( Certified Mail No. 7013 2630 0000 4300 7495 )

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 2630 0000 4300 7501)

El izabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4301 0013)

Alex Birman, M.D.

Suite 306

4101 Northwest 4th Street

Planta tion, Florida 33317

(Certified Mail No. 7013 2630 0000 4301 7518 )

Plantation General Hospital

Attention: Risk Management

401 Northwest 42nd Avenue

Fort Lauderdale, Florida 33317

(Certified Mail No. 7013 2630 0000 4300 7525 )

Georges Edouard, M.D .

Suite C

4330 West Broward Boulevard

Plantation, Florida 33317

(Certified Mail No. 7013 2630 0000 4300 4432 )

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 Ap peal 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 Divisio n 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 - Relate d Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).