14-002054N Allea Katris Bailey, On Behalf Of And As Parent And Natural Guardian Of Khaleya Elle Bailey Jones, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 15, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEA KATRIS BAILEY, on behalf

of and as parent and natural

guardian of KHALEYA ELLE BAILEY

JONES, a minor,

Petitioner,

vs. Case No. 14 - 2054N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

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

Neurological Injury Comp ensation Association (NICA), on June 30,

2014.

STATEMENT OF THE CASE

On May 1, 2014, Petitioner, Allea Katris Bailey, on behalf

of and as parent and natural guardian of Khaleya Elle Bailey

Jones (Khaleya), a minor, filed a Petition for Benefits Under

Pro test 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 Alexander Brickler, M.D., as the physician

providing obstetrical services at the birth of Khaleya on

October 18, 2007, at Tallahassee Memorial Hospital located in

Tallahassee, Florida.

DOAH served NICA with a copy of the Petition on May 7, 2014.

DOAH serv ed a copy of the Petition on Dr. Brickler on May 8,

2014. DOAH served a copy of the Petition on Tallahassee Memorial

Hospital on May 13, 2014. As of the date of this Summary Final

Order of Dismissal, neither Dr. Brickler nor Tallahassee Memorial

Hospital has petitioned to intervene in this proceeding.

On June 30, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. A s of the date of this Summary

Final Order of Dismissal, Petitioner has not filed a response to

the Motion for Summary Final Order.

FINDINGS OF FACT

1. Khaleya Elle Bailey Jones was born on October 18, 2007,

at Tallahassee Memorial Hospital in Tallahassee , Florida.

Khaleya weighed 3,585 grams at birth.

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

to review the medical records for Khaleya, to determine whether

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

resuscitation in the immed iate 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 his

findings as follows:

Delivery was by spon taneous vaginal birth.

Birth weight was 3,585 grams. The newborn

was not depressed. Apgar scores were 9/9.

No resuscitation was required at birth. The

baby went to the normal nursery. Nursery

admission exam gives a diagnosis of ÐTerm

Newborn.Ñ Manag ement recommendations were

for routine care. The baby had an uneventful

hospital course and was discharged home on

DOL2.

3. In an affidavit dated June 26, 2014, Dr. Willis opined

as follows:

In summary, pregnancy, labor and delivery

were uncomplicated. The baby was not

depressed at birth and had an uneventful

newborn hospital course. Medical records do

not suggest the baby suffered a birth related

brain injury. There was no apparent

obstetrical event that resulted in loss of

oxygen or mechanical traum a to the babyÓs

brain during labor, delivery or the immediate

postdelivery period.

As such, it is my opinion that there was no

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery or

resuscitation in the immediate postdeliver y

period that resulted in loss of oxygen or

mechanical injury to the babyÓs brain or

spinal cord. Accordingly, there was no

causal event which would have rendered the

baby permanently and substantially mentally

and physically impaired as a result of same.

4. 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 obstetrical event that

resulted in loss of oxygen or mechanical injury to KhaleyaÓs

brain or spin al cord. His opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

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

§§ 766.301 - 766.316, Fla. Stat.

6. The Plan was established by the Legi slature "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 represe ntative,

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 - related 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 administrative law judge to whom the claim has been

assigned. § 766.305(7), Fla. S tat. 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.

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 claimed is a birth -

related neurological injury. If the claimant

has demonstr ated, 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 permanently and substantially

mentally and phy sically 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

labor, delivery, or resuscitation in the

immediate postdelivery period in a ho spital.

§ 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 bir th."

§ 766.31(1), Fla. Stat.

10. 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

resuscitation in the immediate postdelivery

per iod in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Khaleya did not sustain an injury to the brain or spinal cord

caused by oxygen deprivati on or mechanical injury occurring in

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

post - delivery period in a hospital. Therefore, Khaleya 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 Allea Katris Bailey

on behalf of and as parent and natural guardian of Khaleya Elle

Bailey Jones is dismissed with prejudice.

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

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Asso ciation

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7014 0150 0002 0386 3651)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7014 0150 0002 0386 3668 )

Tana D. Storey, Esquire

Brewton Plante, P.A.

Suite 250

225 South Adams Street

Tallahassee, Florida 32301

( Certified Mail No. 7014 0150 0002 0386 3675 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald C ypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 0150 0002 0386 3682)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certif ied Mail No. 7014 0150 0002 0386 3699)

Tallahassee Memorial Hospital

1300 Miccosukee Road

Tallahassee, Florida 32308

(Certified Mail No. 7014 0150 0002 0386 3705 )

Alexander D. Brickler, M.D.

1304 Hodges Drive , Suite A

Tallahassee, Florida 32308 - 461 3

(Certified Mail No. 7014 0150 0002 0386 3712)

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 pro ceedings 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 or der 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).