13-003822N Gilbert Kouame And Selina Kouame Duku, On Behalf Of And As Parents And Natural Guardians Of Trinity Kouame, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, February 18, 2014.

Summary: Infant's injuries found to be compensable under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GILBERT KOUAME AND SELINA KOUAME

DUKU, on behalf of and as

parents and natural guardians of

TRINITY KOUAME, a minor ,

Petitioners ,

vs. Case No. 13 - 3822N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION ,

Respondent,

and

FLORIDA HEALTH SCIENCES CENTER,

INC., d/b/a TAMPA GENERAL

HOSPITAL,

Intervenor .

/

SUMMARY FINAL ORDER

This cause came on for consideration upon a Motion for

Summar y Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA) on

December 6, 2013.

STATEMENT OF THE CASE

On September 25, 2013, Petitioners, Gilbert Kouame and

Selina Kouame Duku , on behalf of and as parents a nd natural

guardians of Trinity Kouame (Trinity), a minor, filed a Petition

for Determination of Compensability Pursuant to Section 766.309,

Florida Statutes, and for Bifurcation of any Determination of

Compensation (Petition) with the Division of Administ rative

Hearings (DOAH) for a determination of compensability under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named the following physicians as providing

obstetric services at the birth of Trinity at Tampa General

Hospital at Tampa, Florida: Catherine Lynch, M.D.,

Margaux Manuel, M.D., Jerome Yankowitz , M.D. , and

Angela Gonzalez , M.D.

DOAH served NICA with a copy of the Petition on October 2,

2013. DOAH served Dr. Manuel with a copy of the Petition on

October 4, 2013. On October 7, 2013, DOAH served Dr. Lynch with

a copy of the Petition. On October 7, 2013, DOAH received a

receipt from the United States Postal Service (USPS) showing that

Tampa General Hospital had been served with a copy of the

Petition. On Oct ober 9, 2013, DOAH received a receipt from USPS

showing that Dr. Gonzalez had been served with a copy of the

Petition. On October 11, 2013, DOAH received a receipt from USPS

that Dr. Yan k owitz had been served with a copy of the Petition.

On October 29, 20 13, Florida Health Services Center, Inc. ,

d/b/a Tampa General Hospital filed an Amended Motion to

Intervene, which was granted by Order dated November 8, 2013. As

of the date of this Summary Final Order, Dr. Lynch, Dr. Manuel,

Dr. Yankowitz, and Dr. Gonza lez have not petitioned to intervene

in this proceeding.

On December 6, 2013, NICA filed a Motion for Summary Final

Order, asserting that Trinity did sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statu tes. On January 9, 2014, Petitioners

filed PetitionersÓ Response to Motion for Summary Final Order,

stating that they had no objection to a summary final order

finding that Trinity Ðsuffered a compensable birth - related

neurological injury.Ñ

On January 1 5, 2014, Intervenor filed Intervenor's Response

to Motion for Summary Final Order, stating it had no position as

to the relief requested by Respondent.

FINDINGS OF FACT

inity Kouame was born on January 31, 2012, at Tampa

General Hospital in Tampa, F lorida. She weighed 2,955 grams at

birth.

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

to review the medical records of Trinity . In a report dated

November 18, 2013, Dr. Willis set forth his findings as follows:

The fetal heart rate (FHR) monitor tracing on

admission to the hospital showed a fetal

tachycardia of 180 bpm and decreased FHR

variability. Regular uterine contractions

were present every 2 to 3 minutes, consistent

with labor. A FHR deceleration occurred

about one hour after hosp ital admission with

FHR dropping to 95 bpm. A persistent

irregular FHR pattern continued with the FHR

remaining below 120 bpm until the monitor was

removed, which was about 40 minutes after the

FHR deceleration.

Emergency Cesarean section was done for an

abnormal FHR pattern. Birth weight was

2,995 grams.

The newborn was depressed at birth. Apgar

scores were 0/3/5. Umbilical cord blood gas

was abnormal and consistent with acidosis

with a pH of 6.86 and a base excess of - 14.

The baby was limp at bi rth with spontaneous

respiratory effort. Bag and mask ventilation

was started.

No heart rate could be identified at 30

seconds after birth. Chest compressions

began at 60 seconds after birth. At 90

seconds the baby was intubated. A heart rate

of >100 bpm was noted at 3 minutes of life.

Respiratory distress worsened. At 7 minutes

after birth the oxygen saturation was only

65%. The baby was transported to NICU.

Hypoxic ischemic encephalopathy was

clinically suspected. The baby was managed

with cont rolled hypothermia. Seizure

activity was present a <12 hours="" of="">

EEG on DOL 2 confirmed seizure activity. The

baby was not extubated until DOL 7.

MRI on DOL 11 showed cerebral infarcts,

consistent with global hypoxia.

3. In an affidavit dated De cember 5, 2013, Dr. Willis

opined as follows:

It is my opinion that in summary, labor was

complicated by an abnormal FHR pattern.

Emergency Cesarean section delivery was done

with a depressed newborn. Umbilical cord pH

was only 6.86. Resuscitation was r equired,

including intubation and chest compressions.

Seizure activity was present by 12 hours of

life. MRI on DOL 11 was consistent with

global hypoxia.

As such, it is my opinion that there was an

apparent obstetrical event that resulted in

loss of oxy gen to the babyÓs brain during

labor, delivery and continued into the

immediate post delivery period. The oxygen

resulted in brain injury.

4. NICA retained Michael S. Duchowny, a pediatric

neurologist , to review TrinityÓs medical records and to examine

her. He performed a neurological evaluation on Trinity on

November 20, 2013. On December 5, 2013, Dr. Duchowny executed an

affidavit which stated:

It is my opinion that TRINITYÓs neurological

examination reveals evidence of substantial

mental and motor i mpairment consistent with

global developmental delay. TrinityÓs

examination demonstrates spastic

quadriparesis, microcephaly, cortical visual

impairment, and absence of communication or

socialization skills. She additionally has a

long standing history o f medical resistant

seizures.

A review of medical records sent on

November 7, 2013 confirms her motherÓs recall

of a with cerclage problem prenatally. The

cerclage was removed on January 26, but a

stitch was left in place and the pregnancy

was complica ted by significant hemorrhage.

Apgar scores were 0, 3, & 5 at 1, 5, and 10

minutes and a cord arterial pH was measured

at inity was delivered at Tampa

General Hospital and immediately placed in a

hypothermia protocol for 72 hours. Seizures

were noted after the day of birth. An

ultrasound of the brain performed on

February 3 rd was normal but an MRI scan on

February 12 th revealed multiple areas of

infarction involving the corpus callosum,

basal ganglia, internal capsule and

periventricular white m atter with widespread

diffusion abnormalities in the cerebral

hemispheres. These findings are consistent

with hypoxic ischemic damage.

As such, it is my opinion that based on the

neurological examination and record review, I

believe that TRINITY should b e considered for

compensation with the NICA program as she has

a substantial mental and motor impairment

resulting from a brain injury due to oxygen

deprivation in the course of labor and

delivery. Her findings are in all likelihood

permanent and her prog nosis is extremely

guarded. Should she be accepted into the

NICA program, I believe that her lifespan

prognosis includes another 20 years.

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

have been no expert opinions filed that are contrary to th e

opinions of either Dr. Willis or Dr. Duchowny. The opinions of

Dr. Willis and Dr. Duchowny that Trinity did suffer a

neurological injury due to oxygen deprivation during labor and

delivery are credited. Additionally, Dr. DuchownyÓs opinion that

Trinity has both a substantial mental and motor impairment is

also 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, 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. Stat.

8. The injured in fant, 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 administers the Pla n, 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), Fl a. 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 bee n

assigned. § 766.305(7), Fla. Stat. 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 s atisfaction 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 impair ed, 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.

§ 76 6.309(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 gestat ion 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 hospi tal, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Trinity did sustain an injury to the brain caused by oxygen

deprivation occurring in the course of lab or and delivery in a

hospital, which renders her substantially and permanently

physically and mentally impaired. Therefore, Trinity is eligible

for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Respondent's Motion for Summary Final Order is granted,

and Trinity Kouame sustained a birth - related neurological injury

which is compensable under the Plan.

2. Jurisdiction is reserved to determine the issue of award

pursuant to section 766.31.

3. It is further ORDERED that the parties are accorded 30

days from the date of this Order to resolve, subject to approval

of the administrative law judge, the amount and manner of payment

of an award to Petitioners; the reasonable expenses incurr ed in

connection with the filing of the claim, including reasonable

attorney's fees and costs; and the amount owing for expenses

previously incurred. If not resolved within such period, the

parties shall so advise the administrative law judge, and a

heari ng will be scheduled to resolve such issues. Once resolved,

an award will be made consistent with section 766.31.

DONE AND ORDERED this 22nd day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIR KLAND

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 Administra tive Hearings

this 22nd day of January , 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

(Cer tified Mail No. 7013 1710 0000 1621 0769)

Gary Fox, Esquire

Stewart, Tilghman, Fox, Bianchi

and Cain, P.A.

1 Southeast 3rd Avenue , Suite 3000

Miami, Florida 33131 - 1764

(Certified Mail No. 7013 1710 0000 1621 0776)

David W. Black, Esquire

Frank, Wei nberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7013 1710 0000 1621 0783)

Edward J. Carbone, Esquire

Carlton Fields, P.A.

4221 West Boy Scout Boulevard, Suite 1000

Post Office Box 3239

Tampa, Florida 33607 - 57 80

(Certified Mail No. 7013 1710 0000 1621 0790)

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 1710 0000 1621 0806)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1621 0813)

Margaux Hemstreet Manuel, M.D.

Suite 203

1950 Arlington Street

Sarasota, F lorida 34239

(Certified Mail No. 7013 1710 0000 1621 0820)

Jerome Yankowitz, M.D.

Suite 4

2 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7013 1710 0000 1621 0837)

Angela Gonzalez, M.D.

Suite 210

13550 Southwest 88th Street

Miam i, Florida 33186

(Certified Mail No. 7013 1710 0000 1621 0844)

Catherine Lynch, M.D.

2 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7013 1710 0000 1621 0851)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an ad ministrative 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).