14-000530N Melissa Roberts And Christopher Roberts, On Behalf Of And As Parents And Natural Guardians Of Braylon Roberts, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 6, 2015.

Summary: Child did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA ROBERTS AND CHRISTOPHER

ROBERTS, on behalf of and as

parents and natural guardians of

BRAYLON ROBERTS, a minor,

Petitioners,

vs. Case No. 14 - 0530N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ST. JOSEPH'S WOMEN'S HOSPITAL,

Intervenor.

_______________________________/

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

January 27, 2015.

STATEMENT OF THE CASE

On February 3, 2014, Petitioners, Melissa Roberts and

Christopher Roberts, on behalf of and as parents and natural

g uardians of Braylon Roberts (Braylon), a minor, filed a Petition

for Benefits 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 -

R elated Neurological Injury Compensation Plan (Plan). The

Petition named Yejide O. Sokoya, M.D., as the physician providing

obstetrical services at the birth of Braylon on February 3, 2009,

at St. JosephÓs WomenÓs Hospital located in Tampa, Florida.

DOAH s erved NICA with a copy of the Petition on February 5,

2014. DOAH served St. Joseph Ó s WomenÓs Hospital with a copy of

the Petition on March 13, 2014. On February 4, 2014, DOAH

attempted service of a copy of the Petition to Yejide O. Sokoya,

M.D., by certi fied mail. However, the envelope was returned to

DOAH from the United States Postal Service marked ÐReturn to

Sender, Attempted - Not Known, Unable to ForwardÑ on February 24,

2014.

Intervenor St. JosephÓs WomenÓs Hospital filed a Petition to

Intervene on March 27, 2014, which was granted by Order dated

April 10, 2014.

On January 27, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. An Order to Show Cause was entered

on February 10, 2015, and an Amended Order to Show Cause was

entered on February 16, 2015, advising Petitioners to show cause

in writing why RespondentÓs Motion for Summary Final Order should

not be gra nted. As of the date of this Summary Final Order of

Dismissal, no response has been filed by Petitioners nor by

Intervenor.

FINDINGS OF FACT

1. Braylon Roberts was born on February 3, 2009, at St.

JosephÓs WomenÓs Hospital located in Tampa, Florida. BraylonÓs

birth weight exceeded 2,500 grams.

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

to review the medical records for Braylon. On July 1, July 9,

and August 18, 2014, Dr. Willis performed a medical records

review and wrote medical r eports. In an affidavit dated

December 29, 2014, he summarized his records review and opined as

follows:

In summary, labor was induced at term with an

uncomplicated spontaneous vaginal delivery.

The newborn was not depressed and required no

resuscitation after birth. Hospital course

was uneventful until DOL 2 when seizure

activity was noted. MRI was consistent with

cerebral stroke.

The baby suffered a cerebral stroke at some

time on DOL 2. Medical history of a normal

spontaneous vaginal birth with no n ewborn

depression and a normal initial newborn

hospital course, suggests the stroke was not

due to oxygen deprivation or mechanical

trauma during labor, delivery or in the

immediate post - delivery period.

There was no apparent obstetrical event that

result ed in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post - delivery

period.

The additional records do not change any of

the opinions expressed in the letter of

07/01/2014.

The FHR monitor tracing does not suggest

fetal distress during labor. This would be

in agreement with the previous opinion that

the newborn stroke did not result from oxygen

deprivation during labor.

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

(Dr. Fernandez), a pediatric neurologist, to examine Braylon and

to review his medical records. Dr. Fernandez examined Braylon on

October 6, 2014. In a medical report regarding his independent

medical examination of Braylon, Dr. Fernandez opined as follows:

Braylon has a subtle (very mild) right

hemiparesis that is not causing substantial

motor impairment at this time and it is not

predicted not [ sic ] to cause substantial

motor impairment in the future. Speech is

mildly to moderately delayed, but improving

and he is improving with regard to basi c

learning skills in his regular kindergarten

classroom setting. The ultimate outcome with

regard to more complicated learning is

indeterminate at this time, but he should

continue to improve with appropriate input

from teachers and family members.

Brayl onÓs neurological injury was due to an

ischemic stroke in the distribution of a

branch of the left middle cerebral artery.

His neurological injury was not caused by

oxygen deprivation or mechanical injury due

to an obstetrical event during labor,

delivery, or in the immediate post delivery

of [sic] resuscitation.

4. Dr. Fernandez confirmed his opinion in an affidavit

dated January 7, 201 5 . 1/

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

have been no expert opinions filed that are contrary to the

opinion of Dr. Willis that 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. Dr. WillisÓ opinion is credited. There are no

contrary expert opinions filed that are contrary to

Dr. FernandezÓs opinion that although Braylon has a subtle (very

mild) right hemiparesis, it is not causing, and is not predicted

to cause, substantial motor impairment. Further, Dr. Fernandez

also opine d that BraylonÓs neurological injury was not caused by

oxygen deprivation or mechanical injury due to an obstetrical

event during labor, delivery, or in the immediate post - delivery

or resuscitation. 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 established by the Legislature "for the

purpose of providing compensation, irre spective 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 his personal representative,

parents, dependents, and next of kin may seek c ompensation 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 res ponse 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 birt h - 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, 766.309, and 766.31, Fla. Stat.

10. In discharging this responsibility, th e administrative

law judge 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

administrative law jud ge, 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 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 sus tained 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.

11. The term "birth - rel ated 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 gestati on, 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.

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

Braylon did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course

of labor, deliver y, or resuscitation in the immediate post -

delivery period in a hospital. Therefore, Br a y lon is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that

1. The Petition fi led by Melissa Roberts and Christopher

Roberts, on behalf of Braylon Roberts, is dismissed with

prejudice.

2. The final hearing scheduled for March 17, 2015, is

cancelled.

DONE AND ORDERED this 6th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 6th day of March , 2015 .

ENDNOTE

1/ The date of January 7, 2014, on Dr. Fernandez's affidavit is

an apparent scriveners error, as the Petition for Benefits was

filed February 3, 2014 , and Dr. Fernandez's examination of

Braylon took place on October 6, 2014.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Ta llahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2144)

Melissa Roberts

Christopher Roberts

7508 Camarina Calle

Tampa, Florida 33615

(Certified Mail No. 7014 2120 0003 1048 2151)

David S. Nelson, Esquire

La Cava and Jacobson, P .A.

Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2168)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 701 4 2120 0003 1048 2175)

Melissa Roberts

Christopher Roberts

5832 Coventry Drive

Tampa, Florida 33615

(Certified Mail No. 7014 2120 0003 1048 2182)

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 2120 0003 1048 2199)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 701 4 2120 0003 1048 2205)

Yejide O. Sokoya, M.D.

Suite 6419

2021 North Lemans Boulevard

Tampa, Florida 33607

(Certified Mail No. 7014 2120 0003 1048 2212)

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 Procedure. Such proceedings are

commenced by filing the original n otice of a dministrative a ppea l

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).