14-000603N Ashley Gaylord And Paul Gaylord, On Behalf Of And As Parents And Natural Guardians Of Phoenix Gaylord, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, May 19, 2014.

Summary: Infant did not sustain an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY GAYLORD AND PAUL GAYLORD,

on behalf of and as parents and

natural guardians of PHOENIX

GAYLORD, a minor,

Petitioners,

vs. Case No. 14 - 0603N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIAT ION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES; WOMEN'S CARE

FLORIDA, d/b/a DELANEY

OBSTETRICS AND GYNECOLOGY AND

THE WOMEN'S CENTRE FOR

EXCELLENCE; STEPHEN SNOW, M.D.;

CHERISE CHAMBERS, M.D.;

APRIL MER RITT, M.D.; AND

PARMELEE THATCHER, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order filed by Respo ndent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on May 2, 2014.

STATEMENT OF THE CASE

On February 10, 2014, Petitioners, Ashley Gaylord and

Paul Gaylord, on behalf of and as parents and natural guardians

of Phoenix Gaylo rd (Phoenix), a minor, filed a Petition Under

Protest Pursuant to Florida Statute 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 Inju ry Compensation Plan (Plan). The

Petition named Cherise Chambers, M.D.; Stephen Snow, M.D.;

Parmelee Thatcher, M.D.; and April Merritt, M.D., as the

physicians providing obstetric services at the birth of Phoenix

at Winnie Palmer Hospital in Orlando, Flor ida.

On February 24, 2014, Orlando Health, Inc., d/b/a Winnie

Palmer Hospital for Women filed a Petition to Intervene, which

was granted by Order dated March 11, 2014. On February 28, 2014,

WomenÓs Care Florida d/b/a Delaney Obstetrics & Gynecology and

Th e WomenÓs Centre for Excellence; Stephen Snow, M.D.;

Cherise Chambers, M.D.; April Merritt, M.D.; and

Parmelee Thatcher, M.D., filed a Petition for Leave to Intervene,

which was granted by Order dated March 11, 2014.

On May 2, 2014, NICA filed a Motion f or Summary Final Order,

asserting that Phoenix did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

On May 15, 2014, Respondent filed a Notice, advising that

Petitioners and Intervenors di d not oppose the granting of the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Phoenix Gaylord was born on October 5, 2011, at Winnie

Palmer Hospital for Women and Babies in Orlando, Florida.

Phoenix weighed 4,140 grams at birth.

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

to review the medical records of Phoenix. Based on his review,

Dr. Willis opined the following:

In summary, delivery was complicated by a

shoulder dystocia. The shoulder dystocia

resulted in a brachial plexus in jury, but did

not cause any significant oxygen deprivation

or mechanical trauma to the spine or brain.

Umbilical cord blood gas was normal within a

pH of 7.3 and the baby had an otherwise

normal hospital course.

There was a maternal infection during labo r,

which was treated with antibiotics. The

maternal infection did not adversely affect

the baby. The maternal infection did not

result in any oxygen deprivation during

labor, delivery or the immediate post

delivery period.

There was no apparent obstetri cal event that

resulted in a loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, delivery or the immediate post

delivery period.

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

that Phoenix sustained a brain o r spinal cord injury as a result

of a loss of oxygen or mechanical trauma during labor, delivery,

or resuscitation in the immediate post - delivery period.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction

over the parties to a nd the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

5. The Plan was established 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 his 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 is sue of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

7. 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 administr ative law judge in

accordance with the provisions of chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

8. In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon the

avai lable evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen dep rivation 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

p articipating 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 sustaine d

a birth - related neurological injury and that obstetrical services

were delivered by a participating 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 - relat ed 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

deprivatio n 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.

1 0 . The evidence, which is n ot refuted, established that

Phoenix did not sustain an injury to his brain or spinal cord

caused by oxygen deprivation or mechanical injury during labor,

delivery, or resuscitation in the immediate post delivery period.

Phoenix did not sustain a birth - re lated 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 Ashley Gaylord and

Paul Gaylord, on behalf of and as parents a nd natural guardians

of Phoenix Gaylord, is dismissed with prejudice.

DONE AND ORDERED this 19th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Admini strative 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 19th day of May , 2014 .

COPIE S 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 4299 5090 )

Maria D. T ejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7013 2630 0000 4299 5106 )

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman, and Goggin

315 East Robinson Street, Suite 55 0

Orlando, Florida 32801

( Certified Mail No. 7013 2630 0000 4299 5113)

Thomas E. Dukes, III, Esquire

McEwan, Martinez and Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802

( Certified Mail No. 7013 2630 0000 4299 5120 )

Jeffrey P. Brock, Esquire

S mith, Hood, Loucks, Stout,

Bigman, and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

( Certified Mail No. 7013 2630 0000 4299 4277 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department o f Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4299 4284)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Fl orida 32308

(Certified Mail No. 7013 2630 0000 4299 4291)

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. R eview proceedings are governed by

the Florida Rules of Appellate 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 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).