14-000882N Linda And Russell Kerns, On Behalf Of And As Parents And Natural Guardians Of Christian Kerns, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 19, 2015.

Summary: Child did not sustain oxygen deprivation or mechanical injury to the brain or spinal cord in the course of labor, delivery, or resuscitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA AND RUSSELL KERNS, on

behalf of and as parents and

natural guardians of CHRISTIAN

KERNS, a minor,

Petitioners,

vs. Case No. 14 - 0882N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

MEASE COUNTRYSIDE HOSPITAL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Responden t, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on May 5,

2015.

STATEMENT OF THE CASE

On February 21, 2014, Petitioners, Linda and Russell Kerns,

on behalf of and as parents and natural guardians of Christian

Kerns (Christian ), 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 - Related

Neurological Injury Compensat ion Plan (Plan). The Petition named

Wanda Torres, M.D., as the physician providing obstetrical

services at the birth of Christian on February 24, 2009, at Mease

Countryside Hospital located in Safety Harbor, Florida.

DOAH served NICA with a copy of the Pe tition on February 26,

2014. DOAH served Mease Countryside Hospital with a copy of the

Petition on March 13, 2014. DOAH served Wanda Torres - Oyola,

M.D., with a copy of the Petition on February 27, 2014.

On March 27, 2014, Mease Countryside Hospital fil ed a

Petition to Intervene which was granted by Order dated April 9,

2014. As of the date of this Summary Final Order of Dismissal,

no petition to intervene has been filed by Dr. Torres - Oyola.

On May 5, 2015, NICA filed a Motion for Summary Final Orde r,

asserting that Christian did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

FINDINGS OF FACT

1. Christian was born on February 24, 2009, at Mease

Countryside located in Safety Harbo r , Florida. Christian, who

was born a twin, weighed in excess of 2,000 grams at birth.

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

to review the medical records for Christian. In a medical report

dated August 7, 2014, Dr. Willis opined as follows:

Christine [ sic ] was delivered by Cesarean

section for twins. Christine was designated

as fetus A in the hospital records. Birth

weight was 2,395 grams. Apgar scores were

9/9. The baby had mild respiratory distress

and required nasal oxygen fo r < 24="" hours="">

then weaned to room air. NICU admission exam

noted the baby to be alert and active with

normal muscle tone.

After weaning off oxygen, the baby remained

stable until about one week of age when fever

and seizure activity developed. E. coli

meningitis was diagnosed. The baby

subsequently developed hydrocephalus as a

result of the meningitis. The child was

subsequently diagnosed with cerebral palsy

and developmental delay.

Based on limited medical records, there does

not apparent [ sic ] to be any obstetrical

event that resulted in loss of oxygen or

mechanical trauma to the babyÓs brain during

labor, delivery or the immediate post

delivery period. The baby had mild

respiratory distress for less than 24 hours.

The baby was stable until seizur es developed

at about one week age. Bacterial meningitis

was diagnosed and resulted in hydrocephalus

and brain injury.

3. Dr. Willis reaffirmed his opinion in an affidavit dated

April 27, 2014.

4. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny),

a pediatric neurologist, to examine Christian and to review his

medical records. Dr. Duchowny examined Christian on January 14,

2015. In an affidavit dated April 29, 2015, regarding his

independent medical examination of Christian, Dr. Duchowny opined

a s follows:

In summary, ChristianÓs evaluation today

reveals findings consistent with a

substantial mental and physical impairment.

Christian has a right hemiparesis with

greater involvement of the upper extremity,

absence of meaningful communication skill s,

repetitive self - stimulatory behavior,

cortical visual impairment, microcephaly, and

static hydrocephalus with a functioning left

ventriculoperitoneal shunt. His

developmental level is between 9 - 12 months of

age which is significantly delayed.

A review of ChristianÓs medical records

confirms his motherÓs impression of

meningitis. Christian was diagnosed with

Citrobacter meningitis in the N ewborn

N ursery. The records indicate that Christian

was born at 33 weeks gestation and weighed 5

pounds 4 ounces a t birth and had Apgar scores

of 9 & 9 at 1 and 5 minutes. He was

delivered by non - emergent repeat elective

cesarean section. Citrobacter meningitis was

confirmed on cerebrospinal fluid examination

on March 3, 2009. Gram negative rods were

noted in the f luid which revealed a protein

of 248 with 2830 white blood cells. He was

treated aggressively with antibiotics but

developed obstructive hydrocephalus

necessitating his ventriculoperitoneal

shunting.

Although Christian has a permanent and

substantial men tal and motor impairment, the

etiology would appear to be postnatal -

acquired Citrobacter meningitis and

hydrocephalus. The medical records do not

substantiate that ChristianÓs neurologic

impairment resulted from either oxygen

deprivation or mechanical inj ury in the

course of labor or delivery. For this

reason, I am not recommending Christian for

inclusion within the NICA program.

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

expert opini ons filed that are contrary to Dr. DuchownyÓs opinion

that although ChristianÓs examination reveals findings consistent

with a substantial mental and motor impairment, his neurological

problems did not result from either oxygen deprivation or

mechanical in jury acquired in the course of labor or delivery.

Dr. DuchownyÓs 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, Fl a. Stat.

7. 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.

8 . 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 ad ministers 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.

9. 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 administrative law judge in

accordance with the provisions of chapter 120, F lorida Statutes.

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

10. In discharging this responsibility, the 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 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

rend ered 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 participat ing 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 resusci tation 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.

11. 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 o f 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.

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

Christian did not sustain an injury t o 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. Therefore, Christian is not

eligible for benefits under the Plan.

CONCLUSI ON

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. The Petition filed by Linda and Russell Kerns, on behalf

of Christian Kerns, is dismissed with prejudice.

2. The final hearing scheduled for June 16, 2015, is

ca ncelled.

DONE AND ORDERED this 19th day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0647)

Erin Mary O'Toole, Esquire

Erin M. O'Toole, LLC

540 4th Stree t, North

St. Petersburg, Florida 33701

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0654)

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 10 53 0661)

Daryl Q. Stringer, Esquire

Law Offices of Daryl Q. Stringer, P.A.

1808 North Morgan Street, Suite A

Tampa, Florida 33602

(Certified Mail No. 7014 2120 0003 1053 0678)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Aven ue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0685)

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 0 003 1053 0692)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1053 0708)

Wanda I. Torres - Oyola, M.D.

Attention: Javi er Berolo

Suite 215

inity Oaks Boulevard

Trinity, Florida 34655 - 4406

(Certified Mail No. 7014 2120 0003 1053 0715)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Cour t 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 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).