14-002048N Lovetre Leach And Damien Lawrence, On Behalf Of And As Parents And Natural Guardians Of O&Apos;Uri Lawrence, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, May 21, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOVETRE LEACH AND DAMIEN

LAWRENCE, on behalf of and as

parents and natural guardians of

O'URI LAWRENCE, a minor,

Petitioner s ,

vs. Case No. 14 - 2048N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION,

Respondent,

and

JAMES MARSHALL PALMER, M.D.,

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 April 28,

2015.

STATEMENT OF THE CASE

On March 24, 2014, Petitioners, Lovetre Leach and Damien

Lawrence, on behalf of and as parents and natural guardians of

OÓuri Lawrence (OÓuri), 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 I njury Compensation Plan (Plan). The Petition named

James Palmer, M.D., as the physician providing obstetrical

services at the birth of OÓuri on February 18, 2012, at Tampa

General Hospital located in Tampa, Florida.

DOAH served NICA with a copy of the Pet ition on May 6, 2014.

On May 9, 2014, DOAH received a return receipt from the United

States Postal Service showing that Tampa General Hospital had

been served with a copy of the Petition. On May 14, 2014, DOAH

received a return receipt from the United St ates Postal Service

showing that Dr. Palmer had been served with a copy of the

Petition.

On June 6, 2014, James Marshall Palmer, M.D. , filed a

Petition to Intervene which was granted by Order dated June 19,

201 4 .

As of the date of this Summary Final Ord er of Dismissal,

Tampa General Hospital has not petitioned to intervene in this

proceeding.

On April 28, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. The motion was served by e - mail on

April 28, 2015. An Order to Show Cause was entered on May 6,

2015, advising Petitioners and Intervenor to show cause in

writing why RespondentÓs Motion for Summary Final Order sh ould

not be granted. On May 15 and May 19, 2015, various medical

records concerning OÓuri Lawrence were fax - filed with the

Division of Administrative Hearings.

FINDINGS OF FACT

1. OÓuri Lawrence was born on February 18, 2012, at Tampa

General Hospit al located in Tampa, Florida. OÓuri weighed 4,520

grams at birth.

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

to review the medical records for OÓuri, to determine whether an

injury occurred to the brain or spinal cord caused by oxygen

dep rivation or mechanical injury occurring in the course of

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

period. In a medical report dated November 4, 2014 , Dr. Willis

described his findings in part as follows:

Vaginal delivery was compli cated by a

shoulder dystocia. Birth weight was 4,520

grams. Despite the shoulder dystocia, the

baby was not depressed at birth. Apgar

scores were 8/9. Cord blood gas had a normal

pH of 7.26 and a normal base of 2.

Evaluation in the nursery indicated t he baby

was in no acute distress and was alert.

Decreased movement of the left arm was noted.

X - Ray did not identify any bone fractures.

Other than the ErbÓs palsy, the baby had a

relatively normal hospital course.

In summary, delivery was complicated by a

shoulder dystocia and resulting ErbÓs palsy.

There was no fetal distress during labor.

The newborn was not depressed at birth. The

newborn hospital course did not suggest

hypoxic ischemic injury.

Follow - up care after hospital discharge

primarily co ncerned evaluation and management

of the ErbÓs palsy.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spine during

labor, delivery or the immediate post

delivery period.

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

April 7, 2015.

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

a pediatric neurologist, to examine OÓuri and to review his

medical records. Dr. Duchowny examined OÓuri on January 28,

2015. In an af fidavit dated April 7, 2015, Dr. Duchowny opined

as follows:

In summary, OÓuriÓs neurological examination

today reveals findings consistent with a left

ErbÓs palsy affecting the C5/C6 musculature.

He has preserved fine motor coordination of

his distal extr emity but supination is

limited at the wrist and he does not

consistently fully extend the left elbow. In

contrast, there are no findings on todayÓs

evaluation that indicate injury to either the

brain or spinal cord. Mechanical injury was

therefore susta ined outside the central

nervous system and for this reason, I am not

recommending OÓuri for compensation within

the NICA program.

5 . Various medical records of OÓuri were fax - filed with

DOAH following the entry of the Order to Show Cause. However, as

further addressed in the Conclusions of Law, whether or not these

documents would be admissible in a formal hearing, they would not

affect the ultimate conclusion reached in this case.

6 . 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 or spine during labor, delivery or the immediate

post - delivery perio d. Dr. WillisÓ opinion is credited. There

are no contrary expert opinions filed that are contrary to

Dr. DuchownyÓs opinion that there are no findings that indicate

injury to the brain or spinal cord, and that mechanical injury

was therefore sustained ou tside the central nervous system.

Dr. DuchownyÓs opinion is credited.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

8 . Th e 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.

9 . The injured i nfant, 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 Pl an, 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), F la. Stat.

10 . 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 b een

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.

1 1 . 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 i njury. 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

rendered permanentl y 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 i n 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

i mmediate 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 2 . 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, delivery, or

resuscitati on in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

1 3 . As referenced above, medical records of OÓuri were fax -

filed following the entry of the Order to Show Cau se. However,

whether or not these documents would be admissible in a formal

hearing, they would not affect the ultimate conclusion reached in

this case. That is, section 766.302(2), Florida Statutes,

specifically requires that the injury to the brain or spinal cord

be Ðcaused by oxygen deprivation or mechanical injury occurring

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

immediate postdelivery period which renders the infant

permanently and substantially mentally and physically impaired.Ñ

Th e evidence, which is not refuted by any contrary expert

opinions, established that OÓuri did not sustain an injury to the

brain or spinal cord caused by oxygen deprivation or mechanical

injury in the course of labor and delivery. Therefore, OÓuri is

not e ligible for benefits under the Plan. §§ 766.302(2) and

766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Lovetre Leach and

Damien Lawrence, on behalf of and as p arents and natural

guardians of OÓuri L a wrence, is dismissed with prejudice, and the

final hearing scheduled for June 2, 2015, is canceled.

DONE AND ORDERED this 21st 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

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divis ion of Administrative Hearings

this 21st 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, Florid a 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1052 7975)

Lovetre Leach

Damien Lawrence

10313 Fernbrook Lane

Tampa, Florida 33624

(Certified Mail No. 7014 2120 0003 1052 7982)

Justine D. Adamski, Esquire

La Cava and Jacobson, P.A.

Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1052 7999)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 2120 0003 1052 8 002)

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 1052 8019)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency fo r Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1052 8026)

Tampa General Hospital

Attention: Risk Management

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7014 2 120 0003 1052 8033)

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 F lorida 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).