14-001001N Ericka Jackson, On Behalf Of And As Parent And Natural Guardian Of Sh?Myia Mcbean, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 5, 2014.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERICKA JACKSON, on behalf of and

as parent and natural guardian

of SHÓMYIA McBEAN, a minor,

Petitioner,

vs. Case No. 14 - 1001N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent ,

and

THOMAS STAVOY, M.D., AND HALIFAX

HOSPITAL MEDICAL CENTER, d/b/a

HALIFAX MEDICAL CENTER,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Mo tion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

August 20 , 2014.

STATEMENT OF THE CASE

On March 3 , 201 4 , Petitioner, Erica Jackson , on behalf of

and as parent and natural guar dian of ShÓmyia Mc Bean ( ShÓmyia ), 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 - Relate d Neurological

Injury Compensation Plan (Plan). The Petition named Thomas G.

Stavoy , M.D., as the physician providing obstetrical services at

the birth of ShÓmyia on February 1 1 , 201 1 , at Halifax Medical

Center located in Daytona Beach , Florida.

DOAH serv ed NICA with a copy of the Petition on March 6 ,

201 4 . DOAH served a copy of the Petition on Halifax Hospital

Center , d/b/a Halifax Medical Center on March 7, 2014. On

March 1 0 , 201 4 , DOAH received a return receipt from the United

States Postal Service sh owing that Dr. Stavoy had been served

with a copy of the Petition.

On March 21, 201 4 , Thomas Stavoy, M.D. , filed a Motion to

Intervene , and on March 24, 2014, Halifax Hospital Medical

Center, d/b/a Halifax Medical Center filed a Motion to Intervene,

whic h w ere granted by Order dated April 3 , 2014.

On August 20 , 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Th e motion was served by

electronic mail on August 20 , 2014. Respondent represented in

its motion that Petitioner and Intervenor s had no objection to

the granting of the motion.

FINDINGS OF FACT

1. ShÓmyia Mc Bean was born on February 1 1 201 1 , at Hali fax

Medical Center located in Daytona Beach , Florida. ShÓmyia

weighed 3, 288 grams at birth.

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

to review the medical records for ShÓmyia , to determine whether

an injury occurred in the course of lab or, delivery, or

resuscitation in the immediate post - delivery period in the

hospital due to oxygen deprivation or mechanical injury occurring

in the course of labor, delivery, or resuscitation in the

immediate post - delivery period. Dr. Willis described hi s

findings as follows in his medical report :

In summary , there was no significant fetal

distress during labor. However, delivery was

complicated by several failed attempts for

vaginal delivery by vacuum and some delay in

starting the Cesarean delivery due to

problems with inadequate levels with a labor

epidural. The baby was severely depressed at

birth due to the difficult delivery. Full

resuscitation was required. Cord blood gas

was consistent with acidosis (pH 6.78).

Seizure activity developed within 24 hours of

birth and MRI on the day of birth confirmed

cerebral ischemia.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs

brain during delivery and continuing into the

immediate postdelivery period. The o xygen

depr ivation resulted in brain injury. I am

unable to comment about the severity of the

brain injury .

3. NICA retained Michael S . Duchowny , M.D., a pediatric

ne u rologist, to examine ShÓmyia and to review h er medical

records. Dr. Duchowny examined ShÓmyia o n July 16 , 2014, and

opined as follows in his medical report :

In SUMMARY, Sh ÓmyiaÓs neurological

examination is significant for a left lower

extremity monoparesis. In contrast, her

other three limbs are well preserved and her

overall mental functioning is clearly at or

above age level.

A review of Sh'myia's medical records

confirms the family's impression that she had

difficulties at birth. Of note, her mother

was febrile to 101 degrees at time of

delivery and Sh'myia was delivered by urgent

cesarean s ection after four failed attempts

at vaginal delivery with vacuum assistance.

Sh'myia was born cyanotic, floppy, and apneic

and required intubation in the delivery room.

However, she was weaned from mechanical

ventilation at 12 hours of age. Seizures

we re noted at 20 hours of age. Her Apgar

scores were 0, 0, 3, and 4 at 1, 5, 10, and

20 minutes respectively. The cord pH was

6.78. Her white blood cell count showed a

left shift and she was treated aggressively

with antibiotics for 4 days until blood

cul tures came back normal. Hypocalcemia with

a value of 6.7 was also treated immediately.

Sh'myia weighed 7 pounds 4 ounces at birth

and was 41 weeks gestation. An MRI scan the

next day revealed edema consistent with

diffuse changes and an EEG performed on

February 15 revealed high voltage discharges

but no evidence of birth suppression pattern.

Although Sh'myia did have birth - related

difficulties, she has done remarkedly well

and she does not presently show a significant

mental impairment. Her motor imp airment in

the left lower extremity is significant but

she is undergoing therapy and I suspect that

she will ultimately regain a more normal

range of motion through either her present

therapies or possibly future surgery to

lengthen her Achilles tendon.

I n view of Sh'myia's good overall current

neurologic status, I am not recommending her

for compensation within the NICA program.

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

have been no expert opinions filed t hat are contrary to the

opinion of Dr. Willis that there was an obstetrical event that

resulted in loss of oxygen to the brain. Dr. WillisÓ opinion is

credited. There are no contrary expert opinions filed that are

contrary to Dr. Duchowny Ós opinion that ShÓmyia does not

presently show a significant mental impairment or that any

physical impairment is permanent . Dr. Duchowny Ós opinion is

credited.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceeding s.

§§ 766.301 - 766.316, Fla. Stat.

6 . 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.

7 . 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 issue of whether the injury is a birth - rela ted 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 adminis trative 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 pr ovisions of chapter 120, Florida Statutes.

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

9 . 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 c laimed 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 th e 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

la bor, 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.

1 0 . The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - related neurological injury" means

injury to t he 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 c ourse of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

most likely ShÓmyia did sustain an injury to the brain caused by

oxygen deprivation occurring in the course of delivery. The

evidence does not establish that the brain injury resulted in

permanent and substantial mental and physical impairments.

Therefore, ShÓmyia i s 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 Erica Jackson , on

behalf of and as parent and natural guardian of ShÓmyia Mc Bean ,

is dismisse d with prejudice.

DONE AND ORDERED this 5th day of September , 2014 , 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 5th day of September , 2014 .

COPIES FURNISHED:

(via certified mail)

Gloretta H. Hall, Esquire

Gloretta H. Hall, P.A.

1115 Southeast Ocean Boulevard

Stuart, Florida 34996 - 2517

(eServed)

( Certified Mail No. 7014 1200 0002 3337 6894 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

( Certified Mail No. 7014 1200 0002 3337 6900 )

Jason O. Brown, Esquire

Cranshaw Brown

481 North U.S. Highway 1

Ormond Beach, Florida 32174

(eServed)

( Certified Mail No. 7014 1200 0002 3337 6 917 )

Michael R. D ' Lugo, Esquire

Wicker, Smith, O ' Hara, McCoy, Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802

(eServed)

( Certified Mail No. 7014 1200 0002 3337 6924 )

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(eServed)

( Certified Mail No. 7014 1200 0002 3337 6931 )

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 1200 0002 3337 6870)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 1200 0002 3337 6887)

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

th e Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

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

c opy, 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).