13-003884N Julie E. Smith And Mark L. Mcmillan, Individually And On Behalf Of Coleman Mcmillan, Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 16, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIE E. SMITH AND MARK L.

MCMILLAN, individually and on

behalf of COLEMAN MCMILLAN,

minor,

Petitioners,

vs. Case No. 13 - 3884N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Responden t,

and

SOUTHERN BAPTIST HOSPITAL OF

FLORIDA, INC., d/b/a BAPTIST

MEDICAL CENTER SOUTH,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion fo r

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on July 3,

2014.

STATEMENT OF THE CASE

On October 9, 2013, Petitioners, Julie E. Smith and Mark L.

McMillan, individually and on behalf o f Coleman McMillan

(Coleman), 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 Birth - Related N eurological

Injury Compensation Plan (Plan). The Petition named Amy D.

Greenwald, M.D., as the physician providing obstetrical services

at the birth of Coleman on December 12, 2012, at Baptist Health

System located in Jacksonville, Florida.

DOAH served NI CA with a copy of the Petition on October 11,

2013. On October 17, 2013, DOAH received a return receipt from

the United States Postal Service showing that Dr. Greenwald had

been served with a copy of the Petition. On October 23, 2013,

DOAH received a ret urn receipt showing that Baptist Health System

had been served with a copy of the Petition.

On December 18, 2013, Southern Baptist Hospital of Florida,

Inc. , d/b/a Baptist Medical Center South filed a Petition for

Leave to Intervene, which was granted by O rder dated January 6,

2014. As of the date of this Summary Final Order of Dismissal,

Dr. Greenwald has not petitioned to intervene in this proceeding.

On July 3, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

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

electronic mail on July 3, 2014. Respondent represented in its

motion that Intervenor had no objection to the granting of the

mot ion, and that Petitioners had an objection because they wanted

to take the depositions of RespondentÓs experts. As of the date

of the Summary Final Order of Dismissal, Petitioners have filed

no response to the Motion for Summary Final Order nor have they

requested additional time to respond to the motion.

FINDINGS OF FACT

1. Coleman McMillan was born on December 12, 2012, at

Baptist Medical Center South located in Jacksonville, Florida.

Coleman weighed 3,690 grams at birth.

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

to review the medical records for Coleman, to determine whether

an injury occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

hospital due to oxygen deprivation or mechan ical 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: The mother had well - controlled

hypertension during pregnancy. She was

followed twic e weekly for fetal testing.

There was no documentation of fetal distress

prior to labor. The baby was depressed at

birth, requiring resuscitation. A cord blood

gas was apparently not done. The initial

blood gas in the NICU was consistent with

acidosis. Abnormal fetal tone was noted

shortly after delivery. MRI on DOL 2 was

consistent with anoxic brain injury.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs

brain during delivery and continuing into the

immediate po st delivery period. Oxygen

deprivation was likely present during labor,

but without reviewing the FHR tracing I am

reluctant to make a statement concerning this

issue.

After a review of the fetal heart rate monitor tracing,

Dr. Willis concluded that ther e was no significant oxygen

deprivation during labor.

3. NICA retained Raymond J. Fernandez, M.D., a pediatric

neurologist, to examine Coleman and to review his medical

records. Dr. Fernandez examined Coleman on May 29, 2014, and

made the following findi ngs:

Coleman was active and energetic during much

of the examination. He usually turned when

his name was called, and maintained good eye

contact. Towards the end of the examination

Coleman sat calmly on his fatherÓs lap and

again maintained good eye con tact. He

displayed appropriate stranger anxiety. He

pointed and made grunting sounds. No words

were spoken. He carried out age - appropriate

verbal requests. He opened the door on

request without visual cues, looked up at the

light when I asked him wher e is the light,

lifted his shirt when I asked him to show me

his shirt and pointed to his fatherÓs nose

when I asked him to touch his nose. He

scribbled with pen and paper and pushed the

button on the pen before he handed it back to

me. He stacked four, one - inch cubes using

either hand in well - coordinated fashion. He

walked and ran well. He was able to squat,

pick up objects and shift to stand without

difficulty. He was able to throw a ball

overhand. Muscle tone was normal. He

reached accurately with either hand. There

was no tremor, ataxia or involuntary

movement. Deep tendon reflexes were 2

throughout. There were no pathologic

reflexes. Limited funduscopic examination

was normal. Eye movement was normal and he

was visually attentive. Face was symmetric.

He swallowed well. Palate elevated at

midline. Tongue was midline.

4. Based on his review of the medical records and his

examination of Coleman, Dr. Fernandez opined as follows:

There is no evidence for substantial motor

impairment. Colem anÓs motor examination is

normal, both with regard to fine and gross

motor control and muscle tone is normal.

There is no evidence for substantial mental

impairment at this time. Expressive speech

is delayed, but he displays normal or age -

appropriate pre verbal skills and he appears

to have age - appropriate comprehension of

language. Expressive speech will probably

improve within a reasonable period of time.

Coleman sustained an hypoxic brain injury,

probably during labor and delivery, but there

is no evi dence for substantial mental and

motor impairment that will be permanent.

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

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis and Dr. Fernandez that there was an

obste trical event that resulted in loss of oxygen to the brain.

Their opinions are credited. There are no contrary expert

opinions filed that are contrary to Dr. FernandezÓs opinion that

there is no evidence for a substantial motor or mental impairment

that w ill be permanent. Dr. FernandezÓs 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 - 766.316, Fla. Stat.

7. The Plan was esta blished 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 h is 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 Plan, has "45 day s 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, Florida Statutes.

§§ 766.304, 7 66.309, 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 c laimant

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 substantia lly

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 postdel ivery 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 participat ing 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 of a live

infant weighing at lea st 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 immedi ate 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

most likely Coleman did sustain an injury to the brain caused by

oxy gen deprivation occurring in the course of delivery. The

evidence does not establish that the brain injury resulted in

permanent and substantial mental and physical impairments.

Therefore, Coleman 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 Julie E. Smith and

Mark L. McMillan, individually and on behalf of Coleman McMillan,

is dismissed with prejudice.

DONE AND ORDERED 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)

Kenney Shipley, Executive Director

Florida Birth Related Neurologica l

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7014 0150 0002 0386 0407 )

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certif ied Mail No. 7014 0150 0002 0386 0414 )

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. 7014 0150 0002 0386 0421 )

E arl E. Googe, Jr., Esquire

Smith, Hulsey and Busey

1800 Wachovia Bank Tower

225 Water Street

Jacksonville, Florida 32202

( Certified Mail No. 7014 0150 0002 0386 0438 )

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 0445)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Cert ified Mail No. 7014 0150 0002 0386 0452)

Amy D. Greenwald, M.D.

North Florida OB/Gyn

Suite 311

14546 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 0150 0002 0386 0469)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a fina l 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 proceedings are

commenced by fil ing 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 appro priate 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).