13-003869N Billy And Stacy Baughman, On Behalf Of And As Parents And Natural Guardians Of Riley Baughman, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 7, 2014.

Summary: Child did not sustain a mechanical injury oxygen deprivation during labor or delivery and does not have permanent mental and motor impairments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILLY AND STACY BAUGHMAN, on

behalf of and as parents and

natural guardians of RILEY

BAUGHMAN, a minor,

Petitioners,

vs. Case No. 13 - 3869N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

SOUTH SEMINOLE HOSPITAL, AND

DAVID GOSS, M.D.,

Intervenor s .

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Resp ondent's

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on February 26, 2014.

STATEMENT OF THE CASE

On September 6, 2013, Petitioners, Billy Baughman and

Stacy Baughman, on be half of and as parents and natural guardians

of Riley Baughman (Riley), a minor, filed a Petition for Benefits

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

with the Division of Administrative Hearings (DOAH) for a

determination of compens ability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

David Goss, M.D., as the physician providing obstetric services

at the birth of Riley at South Seminole Hospital in Longwood,

Florida.

DOAH served NIC A with a copy of the Petition on October 8,

2013. On October 17, 2013, DOAH received a certified return

receipt from the United States Postal Service showing that South

Seminole Hospital had been served with a copy of the Petition.

On October 29, 2013, Or lando Health, Inc. , d/b/a South

Seminole Hospital filed a Petition for Leave to Intervene, which

was granted by Order dated November 14, 2013. On November 18,

2013, Dr. Goss filed a Petition for Leave to Intervene, which was

granted by Order dated Decembe r 3, 2013.

On February 26, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Respondent represented the

followin g in the motion: ÐRespondent has contacted the

Petitioners and counsel for the Intervenors and none of the

parties to this action object to this Motion.Ñ

FINDINGS OF FACT

1. Riley Baughman was born on September 8, 2008, at South

Seminole Hospital in Lo ngwood, Florida. Riley weighed 3,425

grams at birth.

2. NICA requested Donald Willis, M.D., to review the

medical records of Riley. In a letter to NICA dated January 17,

2014, Dr. Willis stated the following based on his review of the

medical records:

I have reviewed the medical record s for the

above individual [Riley]. The mother, Stacy

Baughman [sic] was a 34 year old having her

first child. She was evaluated for advanced

maternal age with negative screening tests

and normal appearing fetus by ultras ound.

Hypertension developed close to term. Labor

was induced at 39 weeks due to hypertension.

Cervical dilation was 3 cms on admission.

Fetal heart rate monitor tracing during labor

was not available for review. Vaginal

delivery was apparently uncomp licated. Birth

weight was 3,425 grams (7 lbs 8 ozÓs). The

baby was not depressed at birth. Apgar

scores were 8/9. No resuscitation was

required.

The newborn hospital course was

uncomplicated. Discharge from the hospital

occurred on DOL 2.

Subsequent ly, the child was diagnosed with

cerebral palsy and mild developmental delay.

Seizures were suspected at 4 years of age.

EEG was negative for seizure activity.

In summary, labor was induced at term for

maternal hypertension. Spontaneous vaginal

deliver y was achieved without difficulty.

The newborn was not depressed and had a

normal hospital course with discharge home on

DOL 2.

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 delivery

period .

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

NICA to do an independent medical examination of Riley.

Dr. Duchowny examined Riley on December 18, 2013. Based on his

examination, Dr. Duchowny opined the following:

RileyÓs general, physical and neurological

examinations are only abnormal with respect

to both gross and fine motor coordination and

hypotonia. She also has a speech

articulation disturbance. In contrast, her

cognitive skills are a t age level and there

are no true restrictions on her motor

activity apart from her incoordination.

Although the set of medical records is

incomplete and I have not had an opportunity

to formerly evaluate her MR imaging studies ,

RileyÓs examination does not reveal either a

permanent mental or motor impairment. I

further believe that her impairments were

acquired prenatally and unlikely to result

from either mechanical injury or oxygen

deprivation in the course of labor or

delivery.

For the above reasons , I do not believe that

Riley should be considered for compensation

in the NICA program.

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

that PetitionersÓ claim is not compensable under Plan. The

opinion of Dr. Willis that Riley did not sust ain a mechanical

injury or oxygen deprivation during labor, delivery, or

resuscitation in the immediate post delivery period is credited.

Dr. DuchownyÓs opinion that Riley does not have either a

permanent mental or motor impairment is credited. Responden t has

represented that neither Petitioners nor Intervenors object to

the granting of the motion.

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), F la. Stat.

7. 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. NIC A,

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 neurologica l

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 A dministrative L aw J ud ge 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 A dministrative L aw J udge in

accordance with the provisions of cha pter 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 bir th -

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 th ereby

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

A dministrative L aw J udge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrica l 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 spi nal 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 postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Riley did not sustain a mec hanical injury or oxygen deprivation

during labor or delivery and that Riley does not have permanent

mental and motor impairments; thus, Riley has not sustained a

birth - related neurological injury. Therefore, Riley is not

eligible for benefits under the P lan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Billy Baughman and

Stacy Baughman, on behalf of and as parents and natural guardians

of Riley Baughman, is dismissed with prejudice.

DONE AND ORDERED this 7th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 7th day of March , 201 4 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Directo r

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7013 2630 0000 4176 5816 )

Billy Baughman

Stacy Baughman

905 Redwood Court

Altamonte Springs, Florida 32 701

(Certified Mail No. 7013 2630 0000 4176 5823)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

( Certified Mail No. 7013 2630 0000 4176 5830 )

Thomas E. Duk es, III, Esquire

McEwan, Martinez and Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802

( Certified Mail No. 7013 2630 0000 4176 5847)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock , P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

( Certified Mail No. 7013 2630 0000 4176 5854)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mai l No. 7013 2630 0000 4176 5861)

Elizabeth 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 4176 5878)

NOTICE OF RIGHT TO JUDICIA L 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 proce edings 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).