14-002802N Melissa D?Angelo, Individually And As Natural Parent Of Alex Deblasio, Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Friday, December 5, 2014.

Summary: Child did not sustain injury to 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA DÓANGELO, individually

and as natural parent of ALEX

DeBLASIO, minor,

Petitioner,

vs. Case No. 14 - 2802N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

CITRUS HMA, LLC, d/b/a SEVEN

RIVERS REGIONAL MEDICAL CENTER

AND ROSE MARY SOBEL, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motio n for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

November 1 3 , 2014.

STATEMENT OF THE CASE

On June 13 , 2014, Petitioner, Melissa D'Angelo, individually

and as natural parent of Ale x DeBlasio (Alex) , a minor, filed a

Petition under Protest 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 C ompensation Plan (Plan). The

Petition named Rose Mary Sobel , M.D., as the physician providing

obstetrical services at the birth of Alex on February 7, 2011, at

Citrus HMA, LLC, d/b/a Seven Rivers Regional Medical Center

located in Crystal River, Florida.

DOAH served NICA with a copy of the Petition on June 19 ,

2014. DOAH served Dr. Sobel and Seven Rivers Regional Medical

Center with copies of the Petition on June 20 , 2014.

On July 14, 2014, Rose Mary Sobel, M.D., filed a Petition

and Motion to Intervene. On July 17, 2014, Citrus HMA, LLC,

d/b/a Seven Rivers Regional Medical Center filed a Petition and

Motion to Intervene. The Petitions to Intervene were granted by

Order dated July 31, 2014.

On November 13, 2014, NICA filed a Motion for Summary Final

Orde r, asserting that Alex did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On December 2, 2014, Petitioner

filed a response to NICA's Motion for Summary Final Order stating

that Petitioner takes no position on the Motion and does not have

any objection to the Motion. As of today's date, neither

Dr. Sobel nor Seven Rivers Regional Medical Center has responded

to NICA's Motion for Summary Final Order .

FINDINGS OF FACT

1. A lex DeBlasio was born on February 7, 2011, at Seven

Rivers Regional Medical Center located in Crystal River, Florida.

Alex weighed 3,640 grams at birth.

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

to review the medical records for Alex . In the report of his

review of medical records, Dr. Willis described his findings and

stated his opinion as follows:

In summary labor was induced for post - dates.

There was no fetal distress during labor and

delivery by Cesarean section for failure to

progress was uncompli cated. The newborn was

not depressed. Apgar scores were 9/9.

Newborn hospital course was uneventful. The

baby apparently did well after hospital

discharge until about two years of age when

evaluation for speech and developmental delay

was initiated. M RI showed brain injury.

Based on the medical records, the brain

injury does not appear to be birth related.

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 im mediate post - delivery

period .

3. Dr. Willis reaffirmed the above findings and opinion in

an affidavit dated October 7, 2014 , which reads in pertinent

part:

As such, it is my opinion that there was not

an injury to the brain or spinal cord caused

by oxyg en deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital as required

by Section 766.302(2), Florida Statutes, for

a claim to qualify for compensation under

Sections 766.301 through 766.316, Florida

Statutes.

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

a pediatric neurologist, to examine A lex and to review the

medical records for both Alex and his mother, Melissa D'Angelo .

Dr. Duchowny examined A lex o n October 22 , 2014. In a report of

his examination of Alex, Dr. Duchowny described his findings and

opined as follows:

In summary, Alex's neurological examination

is significant for bilateral pyramidal tract

involvement primarily in the lower

extremities and hyperreflexia consistent with

a diagnosis of mild spastic diplegia. In

contrast, his mental function is appropriate

for age and he has above - average speech

development. He does however have

significant behavioral and emotional issues

and is also over active by history although I

did not observe symptoms today.

A review of Alex's medical records shows that

his mother presented to Seven Rivers Medical

Center for induction of labor at 41 weeks

gestation. Alex was born by cesarean section

with a birth we ight of 8 pounds. The

membranes were ruptured and productive of

clear fluid. His mother has reported that

Alex was "accidently poked in his head on 2

occasions when membranes were ruptured." The

subsequent postnatal course was uncomplicated

and Alex was discharged at 3 days of age.

Two MRI scans of the brain were performed on

May 1 and November 25, 2013. Both studies

revealed extensive abnormal signal in the

subcortical white matter of cerebral

hemispheres in the T2 and FLAIR sequences. I

have not per sonally reviewed either imaging

study.

Based on today's evaluation and review of the

medical records, I am not recommending Alex

for inclusion within the NICA program. He

does not evidence a substantial mental

impairment and his motor impairement is

judge d to be mild. Furthermore, there is no

history of either a significant mechanical

injury or oxygen deprivation in the course of

labor or delivery. I therefore am not

recommending Alex to be considered for

compensation within the NICA program.

5. Dr. Du chowny reaffirmed his findings and opinion in an

affidavit dated November 11, 2014, in which he opined that "Alex

is not permanently and substantially mentally and physically

impaired due to oxygen deprivation or mechanical injury as

required by section 76 6.302(2), Florida Statutes, for a claim to

qualify for compensation under sections 766.301 through 766.16,

Florida Statutes."

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 during labor or delivery. Dr. WillisÓ opinion is

credited. There are no expert opinions filed that are contrary

to Dr. Duchowny Ós opinion that Al ex does not evidence a

sub stantial mental impairment and his motor impairment is judged

to be mild ; and , that there is no history of either a significant

mechanical injury or oxygen deprivation in the course of labor

and delivery. Dr. Du chownyÓs 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 . 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.

9 . 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 - related neurological

injury." § 766.305(4), Fla. Stat.

10 . If NICA determines that t he 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, 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 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

rendered permanently and substantially

mentally and physical ly 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 resus citation

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 hospita l.

§ 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

sing le 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 i n a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

1 3 . The evidence, which is not refuted, established that

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

by oxygen deprivation or me chanical injury in the course of

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

period in a hospital. Therefore, Alex is not eligible for

benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

L aw, it is ORDERED that the Petition filed by Melissa D' Angelo,

individually and as natural parent of Alex DeBlasio, is dismissed

with prejudice.

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

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallah assee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9983)

Joshua T. Frick, Esquire

Hogan Frick

5626 Curry Ford Road

Orlando, Florida 32822

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9990)

Brandon T. Kuhn, Esquire

Bush Graziano Rice and Platter, P.A.

101 East Kennedy Boulevard , Suite 1700

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1049 0002)

Louis LaCava, Esquire

LaCava and Jacobson , P . A .

101 East Kennedy Boulevard, Suite 2500

Tampa, Florida 33602

(Cert ified Mail No. 7014 2120 0003 1047 9742)

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 1047 9489)

Elizabeth Dudek, Secreta ry

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1047 9496)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative la w 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 n otice of a dmi nistrative 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).