14-000503N Pebbles Brugman, Individually And As Parent And Natural Guardian Of Railey Brugman, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, June 12, 2014.

Summary: Child has not sustained permanent and substantial mental and physical impairments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEBBLES BRUGMAN, individually

and as Parent and Natural

Guardian of RAILEY BRUGMAN, a

minor child,

Petitioner,

vs. Case No. 14 - 0503N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Res pondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on May 23,

2014.

STATEMENT OF THE CASE

On January 29, 2014, Petitioner, Pebbles Brugman,

individually and as parent and natural guardian of Railey Brugman

(Railey), a minor, filed a Petition Under Protest Pursuant to

§ 766.301, et seq. , Fla. Stat. (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). The Petition named Ignacio Armas,

M.D., as the physician providin g obstetrical services at the

birth of Railey on May 25, 2010, at Brandon Regional Hospital

located in Brandon, Florida.

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

2014. On February 6, 2014, DOAH received a receipt from the

United States Postal Service showing that Brandon Regional

Hospital had received a copy of the Petition. On March 14, 2014,

DOAH received a receipt from the United States Postal Service

showing that Dr. Armas had received a copy of the Petition.

Neither Dr. Armas nor Brandon Regional Hospital has petitioned to

intervene in this proceeding.

On May 23, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2 ), Florida Statutes. As of the date of th is Summary

Final Order of Dismissal, Petitioner has not filed a response to

the Motion for Summary Final Order.

FINDINGS OF FACT

1. Railey Brugman was born on May 25, 2010, at Brandon

Regional Hospital in Brandon , Florida. Railey weighed in excess

of 2,500 grams at birth.

2. Michael S. Duchowny, M.D. (Dr. Duchowny) , was retained

by NICA to review the medical records of Railey and her mother

and to examine Railey, to determine whether Railey suffers from

an injur y which rendered her permanently and substantially

mentally and physically impaired, and whether such injury is

consistent with an injury caused by oxygen deprivation or

mechanical injury occurring during the course of labor, delivery,

or the immediate pos t - delivery period in a hospital.

Dr. Duchowny evaluated Railey on May 14, 2014. In an affidavit

dated May 22, 2014, Dr. Duchowny opined as follows:

It is my opinion that RaileyÓs neurological

examination reveals evidence of bilateral

upper extremity atax ia, right greater than

left, and has multiple dysmorphic features.

The dysmorphic features are consistent with

the clinical impression of KBG syndrome.

However, the findings from the evaluation do

not reveal either a substantial mental or

physical impair ment, and in all likelihood,

Railey will continue to progress in the

future.

I reviewed the medical records sent to me on

April 15, 2014[,] which document a history of

overstimulation by Pitocin during labor

accompanied by fetal distress and

brachycardia. Railey was subsequently

delivered vaginally with vacuum assistance

and weighed 2,680 grams at birth. Her Apgar

scores were 6 and 9. Seizures began within

the first day of life and an MRI scan done

shortly after birth revealed bilateral

posterior cerebr al hemispheric infarctions.

Although the cerebral lesions were likely

intrapartum complications, Railey has done

remarkably well and has well preserved

neurological function.

As such, based on the foregoing, it is my

opinion that Railey should not be con sidered

for compensation within the NICA program.

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

have been no expert opinions filed that are contrary to

Dr. DuchownyÓs opinion that there is no evidence for a

substantial and permanent motor or m ental impairment.

Dr. DuchownyÓs opinion is credited.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

5. The Plan was estab lished 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.

6. The injured infant, her or hi s 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 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), Fla. Stat.

7. I f 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, 76 6.309, and 766.31, Fla. Stat.

8. 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 cla imant

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 substantiall y

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 la bor, 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 postdeliv ery 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 participatin g physician at birth."

§ 766.31(1), Fla. Stat.

9. 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

infant permanently and substantially mentally

and physically impaired.

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

Railey has not sustained permanent and substantial mental and

physical impairments. Thus, Railey is not eligible for

compensation under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Pebbles Brugman,

individually and as parent and natural guard ian of

Railey Brugman, is dismissed with prejudice.

DONE AND ORDERED this 12th day of June , 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 12th day of June , 2014 .

COPIES FURNISHED:

(vi a 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 4299 4604 )

Arthur Schmidt Skafidas, E squire

Jayson, Farthing, Skafidas, and Wright, P.A.

Suite 600

5401 West Kennedy Boulevard

Tampa, Florida 33609

( Certified Mail No. 7013 2630 0000 4299 4611 )

Tana D. Storey, Esquire

Brewton Plante, P.A.

Suite 250

225 South Adams Street

Tallahassee, Florid a 32301

( Certified Mail No. 7013 2630 0000 4299 4628 )

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 4299 4635)

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 4299 4642)

Brandon Regional Hospital

Attention: Risk Management

119 Oakfield D rive

Brandon, Florida 33511 - 6007

(Certified Mail No. 7013 2630 0000 4299 4659 )

Ignacio Armas, M.D.

WomenÓs Care Florida

Obstetrics & Gynecology Associates

116 Parsons Park Drive

Brandon, Florida 33511

(Certified Mail No. 7013 2630 0000 4299 4666 )

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 Appe llate 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 fil ing 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).