13-004174N Ginelle Thomas, As Mother And Natural Guardian Of Tristan N. Thomas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 24, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GINELLE THOMAS, as mother and

natural guardian of TRISTAN N.

THOMAS, a minor,

Petitioner,

vs. Case No. 13 - 4174N

FLORIDA BIRTH - RELATED

NEUROLOGICAL 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 February 25, 2014.

STATEMENT OF THE CASE

On October 23, 2013, Petitioner, Ginelle Thomas, as mother

and natural guardian of Tristan N . Thomas (Tristan), a minor,

filed a Petition for Benefits Pursuant to Florida Statutes

Section 766.301 et se q . (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Felicia Fox,

M.D., as the physician providing obstetric s ervices at the birth

of Tristan at Baptist Medical Center in Jacksonville, Florida.

DOAH served NICA with a copy of the Petition on October 28,

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

October 29, 2013. On December 23, 2013, DOAH received a receipt

from the United States Postal Service showing that Baptist

Medical Center had been served with a copy of the Petition. As

of the date of th is Summary Final Order of Dismissal, neither

Baptist Medical Center nor Dr. Fox has petitioned to interve ne in

this proceeding.

On February 25, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On February 26, 2014, P etitioner

filed PetitionerÓs Unopposed Motion for Extension of Time to

Respond to RespondentÓs Motion for Summary Final Order, which was

granted by Order dated February 26, 2014, extending the time for

responding to the Motion for Summary Final Order to Ap ril 18,

2014.

On April 17, 2014, the parties filed a Joint Response to

Order of February 7, 2014, in which they stated:

1. The parties have conferred and they do

not believe that a hearing is needed at this

time.

2. The parties will await the Administ rative

Law JudgeÓs ruling on the pending Motion for

Summary Final Order filed by the Respondent,

as well as the ALJÓs review of the underlying

records filed by the Petitioner in

conjunction with the Petition for Benefits.

Other than the joint response fil ed on April 17, 2014, Petitioner

has made no response to the Motion for Summary Final Order. Any

underlying medical records filed by Petitioner with her Petition

would have been forwarded to Respondent, and would not be

retained by DOAH. Thus, the unders igned has no medical records

to review other than those filed by Respondent in support of it s

Motion for Summary Final Order.

FINDINGS OF FACT

istan N . Thomas was born on August 12, 2009, at

Baptist Medical Center in Jacksonville, Florida. Trist an weighed

in excess of 2,500 grams.

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

medical records of Tristan. Based on his review of the medical

records, Dr. Willis opined as follows:

In summary, labor was complicated by

hypertension and a placental abruption. This

resulted in a depressed baby at birth. Full

resuscitation was required. The initial

blood gas after birth was consistent with

severe acidosis with a pH of 6.6. Seizures

developed shortly after birth. EEG and MRI

were consis tent with HIE.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs

brain during labor, delivery, and continuing

into the immediate post delivery period.

This oxygen deprivation resulted in brain

injury. I am not able to comment about the

severity of the brain injury.

3. Michael S. Duchowny, M.D., was requested by NICA to

perform an independent medical evaluation of Tristan. The

evaluation was done on January 22, 2014. Based on his

evaluation, Dr. Duchowny opined as f ollows:

In summary, TristanÓs neurologic examination

reveals evidence of multiple developmental

delays in the social, communication and

behavioral domains. His findings are

consistent with a clinical diagnosis of

autism spectrum disorder and there are no

specific focal or lateralizing findings to

suggest structural brain damage.

I had an opportunity to review medical

records supplied to me which confirmed the

history obtained from TristanÓs mother.

Tristan was delivered at term a t Baptist

Medical Center. His mother suffered from

preeclampsia and was treated with magnesium

sulfateistan was delivered by emergency

cesarean section due to placental abruption,

required resuscitation at birth and had Apgar

scores of 0, 3, and 7 at 1, 5, and 10

minutes. H is cord blood gases revealed

severe acidosis and he was placed in a head

cooling protocol for 72 hours following

stabilization. However, an ultrasound of the

brain on August 17, 2009 was negative as was

an MRI scan performed on August 18, 2009.

In summar y, the findings on examination today

together with the medical history did not

provide evidence of significant brain damage

and Tristan does not suffer from a

substantial motor impairment. Furthermore,

his neurological problems did not, in my

opinion resu lt from either mechanical injury

or oxygen deprivation acquired in the course

of labor and delivery. His autism spectrum

disorder is a primary developmental

disability of prenatal origin. I, therefore,

believe that Tristan should not be considered

for ad mission into the NICA program.

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

to Dr. WillisÓ opinion that Tristan did sustain oxygen

deprivation during labor, delivery, and resuscitation in the

immediate post - delivery period Plan. Dr. Willis could not

comment on the extent of any brain injury that resulted from the

oxygen deprivation. Dr. Duchowny opines that Tristan does not

suffer from significant brain damage and that Tristan does not

have a substantial motor impairment. These opinions a re not

disputed and 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 Legis lature "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 represen tative,

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 s ervice

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 determines t hat 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. St at. 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 demonstra ted, 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 phys ically 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 r esuscitation

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 hos pital.

§ 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 birt h."

§ 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 postdelivery

peri od in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

while Tristan may have sustained oxygen deprivation during labor,

delivery, and resuscita tion in the immediate post - delivery

period , such oxygen deprivation has not resulted in an injury

which renders Tristan permanently and substantially mentally and

physically impaired. Thus, Tristan has not sustained a birth -

related neurological injury and 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 Ginelle Thomas, as

mother and natural guardian of Tristan N. Thomas, is dismissed

with prej udice.

DONE AND ORDERED this 24th day of April , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 24th day of April , 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. 7012 3050 0000 1250 8662)

Frank A. Ashton, Esquire

Hardesty, Tyde, Green and Ashton, P. A.

320 North 1st Street , Suite 703

Jacksonville Beach, Florida 32250

( Certified Mail No. 7012 3050 0000 1250 8679 )

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

( Certified Mail No. 7012 3050 0 000 1250 5326 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1250 5333)

Elizabeth Dudek, Secretary

Health Quality Assuranc e

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 1250 5340)

Baptist Medical Center

Attention: Risk Management

800 Prudential Drive

Jacksonville, Florida 32207

(Certi fied Mail No. 7012 3050 0000 1250 5357 )

Felicia Fox, M.D.

Faben OB/GYN, Inc.

836 Prudential Drive , Suite 1506

Jacksonville, Florida 32207

(Certified Mail No. 70 12 3050 0000 1250 5364)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of a n 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 filing the orig inal 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 Distr ict 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).