13-004240N Lauren Bury, On Behalf Of And As Parent And Natural Guardian Of Maurice Bury, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, May 1, 2014.

Summary: Child's injuries were not a result of oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUREN BURY, on behalf of and as

parent and natural guardian of

MAURICE BURY, a minor,

Petitioner,

vs. Case No. 13 - 4240N

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 Ass ociation

(NICA), on March 12, 2014.

STATEMENT OF THE CASE

On October 21, 2013, Petitioner, Lauren Bury, on behalf of

and as parent and natural guardian of Maurice Bury (Maurice), a

minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 7 66.301 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

Barbara Telan, CNM , as the midwife providi ng obstetric services

at the birth of Maurice at St. MaryÓs Medical Center in West Palm

Beach, Florida.

DOAH served NICA with a copy of the Petition on October 31,

2013. DOAH served a copy of the Petition on St. MaryÓs Medical

Center on December 18, 2013. DOAH served a copy of the Petition

on Barbara W. Flowers Telan, ARNP, on December 18, 2013. As of

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

Ms. Telan nor St. MaryÓs Medical Center has petitioned to

intervene in this proceeding.

On March 12, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes (2012) . On March 27, 2014, a n Order

to Show Cause was ente red, requiring Petitioner to show cause why

the motion should not be granted.

On April 7, 2014, Petitioner filed PetitionerÓs Motion for

Extension of Time to File Response to RespondentÓs Motion for

Summary Final Order, which was granted by Order dated April 8,

2014. On April 24, 2014, Petitioner filed PetitionerÓs Notice of

No Objection to RespondentÓs Motion for Summary Final Order.

FINDINGS OF FACT

1. Maurice Bury was born on February 9, 2012, at St. MaryÓs

Medical Center in West Palm Beach , Florid a. Maurice weighed

3 , 230 grams at birth.

2. NICA retained Donald Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to examine the medical

records for Maurice and his mother, Lauren Bury. After reviewing

the records, Dr. Willis gave the following opinion in his

Affidavit dated March 6, 2014:

It is my opinion that there was no obvious

fetal distress during labor. The baby was

not depressed at birth. Apgar scores were

9/9. The baby was described as vigorous

after birth. The newborn hospital course was

apparently normal for several hours after

birth. Seizure activity was noted more than

12 hours after birth. MRI studies one week

apart, showed findings consistent with

evolving hypoxic brain injury.

This child suffered hypoxic brain injury.

However, there are no findings suggesting the

brain injury occurred during labor, delivery,

or the immediate past [sic] delivery period.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs br ain during labor,

delivery, or the immediate post delivery

period.

3. Michael S. Duchowny, M.D., a pediatric neurologist, was

requested by NICA to do an independent medical examination of

Maurice. Dr. Duchowny examined Maurice on January 29, 2014.

Base d on his examination, Dr. Duchowny opined the following:

It is my opinion that Maurice Bury MauriceÓs

[sic] general, physical and neurological

examinations reveal evidence of hypotonic

weakness of all four limbs and absence of

expressive or receptive commu nication skills.

Maurice manifests findings consistent with a

cortical visual impairment, microcephaly, and

oromotor incoordination. These findings are

indicative of a substantial mental and motor

impairment.

I reviewed the medical records. Although th e

records confirm the motherÓs history that

Maurice was born with a true knot in the

nuchal cord, his neonatal course did not show

evidence of postnatal depression, abnormal

Apgar scores, or old multi - organ system

failure. These findings would be expected

given his poor outcome and MRI findings.

Furthermore, the medical records document a

clear change in fetal movement that occurred

prior to the onset of labor.

As such, it is my opinion that Maurice BuryÓs

neurologic impairment did not result from

oxygen deprivation either in the course of

labor or delivery. Although his substantial

and mental impairments are permanent, I would

not recommend that Maurice be considered for

inclusion within the NICA program.

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

that MauriceÓs injuries were not a result of oxygen deprivation

or mechanical injury during labor, delivery, or resuscitation in

the immediate post - delivery period. The opinions of Dr. Willis

and Dr. Duchowny as stated above are credited.

CON CLUSIONS 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 co mpensation, 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 representative,

parents, dependents, and next o f 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 whi ch 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 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

disput es 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 res ponsibility, 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 demonstrated, to the satisfaction of the

adminis trative 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 presumpti on 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 postdeli very 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 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 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

in fant permanently and substantially mentally

and physically impaired.

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

there was not an obstetrical event that resulted in loss of

oxygen or mechanical trauma to MauriceÓs brain during labor,

delive ry, or the immediate post - delivery period. Therefore,

Maurice 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 Lauren Bury on

behalf of and as parent and natural guardian of Maurice Bury, 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 A dministrative 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 4301 2611 )

Gary Michel Cohen, Esquire

Grossman and Roth

Suite 775

925 South Federal Highway

Boca Raton, Florida 33432

( Certified Mail No. 7013 2630 0000 4301 2628 )

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 333 24

( Certified Mail No. 7013 2630 0000 4300 7426 )

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 7433)

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 4300 7440)

St. Mary's Medical Center

Attention: Risk Management

901 45th Street

West Palm Beach, Florida 33407

(Certified Mail No. 7013 2630 0000 4300 7457 )

Barbara W. Flowers Telan, ARNP

Palm Beach OB/GYN

Suite 100B

4671 South Congress Avenue

Lake Worth, Florida 33461

(Certified Mail No. 7013 2630 0000 4300 7464 )

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 Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Proced ure. 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 pre scribed 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).