14-001929N Lakysha Engram And Marco Andre Bryant, On Behalf Of And As Parents And Natural Guardians Of Marco De&Apos;Andre Bryant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 15, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKYSHA ENGRAM AND MARCO ANDRE

BRYANT, on behalf of and as

parents and natural guardians of

MARCO DE'ANDRE BRYANT, a minor,

Petitioners,

vs. Case No. 14 - 1929N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSAT ION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurolo gical Injury Compensation Association (NICA), on

October 13 , 201 4 .

STATEMENT OF THE CASE

On April 22 , 201 4 , Petitioners, La kysha Engram and

Marco Andre Bryant , on behalf of and as parents and natural

guardians of Marco DeÓAndre Bryant ( Marco ), a minor, fil ed a

Petition Under Protest 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 Compensation Plan

(Plan ).

The Petition named Joan McCarthy , M.D., as the physician

providing obstetric services at the birth of Marco at Tampa

General Hospital in Tampa , Florida.

DOAH served NICA with a copy of the Petition on May 1 , 201 4 .

DOAH served Dr. McCarthy with a copy of the Petition on April 30,

201 4 . DOAH served a copy of the Petition on Tampa General

Hospital on April 3 0 , 201 4 .

On October 13 , 201 4 , NICA filed a Motion for Summary Final

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

neurological inju ry" as that term is defined in section

766.302(2), Florida Statutes. NICA represented in the motion

that Petitioners ha ve no objection to the granting of the motion.

FINDINGS OF FACT

1. Marco DeÓAndre Bryant was born on May 2 2 , 200 7 , at Tampa

General H ospital in Tampa , Florida. Marco weighed 3 , 250 grams at

birth.

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

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

dated May 12 , 201 4 , Dr. Willis opined:

S ummary : T he baby was healthy at birth and

had a normal newborn hospital course.

Unfortunately, the child developed viral

(HSV) encephalitis at 17 - days of age, which

resulted in brain injury. The HSV or viral

encephalitis was not present during labor,

delivery or the immediate post - de livery

period. Brain injury did not occur until the

HSV infection at 17 - days of age.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

pe riod. The childÓs brain injury resulted

from viral encephalitis that occurred over

two weeks after birth.

Thank you for allowing me to review this

case. Please contact my office if there are

any questions.

3. A review of the file does not show any co ntrary

opinions, and Petitioners have no objection to the issuance of a

summary final order finding that the injury is not compensable

under the Plan. The opinion of Dr. Willis that Marco did not

suffer a neurological injury due to oxygen deprivation or

m echanical injury during labor, delivery, or the immediate post -

delivery period 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 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. Sta t.

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, whic h

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 injur y."

§ 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 w hom 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 12 0, 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

available evidence:

(a) Whether the injury claimed is a birth -

rela ted 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 r endered

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 partici pating 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 resu scitation 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 servi ces

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 - 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, deliver y, 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

Marco did not sustain an injury to the brain or spinal cord caused

by oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate post -

delivery period in a hospital. Therefore, Marco is not eligible

for benefits under the Plan.

CONC LUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by La kysha Engram and

Marco Andre Bryant on behalf of and as parents and natural

guardians of Marco DeÓAndre Bryant , is dismissed with prejudice.

DONE AND ORDERED this 15th day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 15th day of October , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Di rector

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7014 1200 0002 3336 4693 )

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mill s Avenue

Orlando, Florida 32803

( Certified Mail No. 7014 1200 0002 3336 4709 )

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

( Certified Mail No. 7014 1200 0002 3336 4716 )

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 3336 4723)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Ca re Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 1200 0002 3336 4730)

Tampa General Hospital

Attention: Risk Management

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7014 1200 000 2 3336 4747)

Joan McCarthy, M.D.

5 Tampa General Circle , Suite 440

Tampa, Florida 33606

(Certified Mail No. 7014 0150 0002 0389 7748)

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 notice of administrative appeal

with the a ge ncy 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). (