14-002818N Kikilia Snell, On Behalf Of And As Parent And Natural Guardian Of Ky&Apos;Mon Travis, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 23, 2014.

Summary: Baby did not sustain a birth-related neurological injury as it was not a live birth.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIKILIA SNELL, on behalf of and

as parent and natural guardian

of KY'MON TRAVIS, a deceased

minor,

Petitioner,

vs. Case No. 14 - 2818N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Res pondent.

_______________________________/

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

September 23 , 201 4 .

STATEMENT OF THE CASE

On June 16, 2014 , Petitioner, Kikilia Snell , on behalf of

and as parent and natural guardian of Ky'Mon Travis (Ky'Mon), a

deceased minor, filed a Petition Under Protest Pursuant to

Florida St atute 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 Orlando Muniz, M.D., as th e physician

providing obstetric services at the birth of Ky'Mon at Jackson

Hospital in Marianna , Florida.

DOAH served NICA with a copy of the Petition on June 20 ,

201 4 . DOAH served Dr. Muniz and Jackson Hospital w ith a copy of

the Petition on June 20, 201 4 . Neither Dr. Muniz nor Jackson

Hospital has petitioned to intervene in this proceeding.

On September 23 , 201 4 , NICA filed a Motion for Summary Final

Order, asserting that Ky'Mon did not sustain a "birth - related

neurological injury" as that term is defin ed in section

766.302(2), Florida Statutes. The Motion was served by United

States Mail on September 23, 2014.

An Order to Show Cause was entered on October 7, 2014,

advising Petitioner to show cause in writing why Respondent's

Motion for Summary Final Or der should not be granted. To date,

no response has been filed.

FINDINGS OF FACT

1. Ky'Mon Travis was delivered on July 12, 2012, at Jackson

Hospital in Marianna, Florida. Ky'Mon weighed 4,735 grams at

delivery.

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

to review the medical records for Ky'Mon. In an affidavit dated

September 16, 2014, Dr. Willis opined in pertinent part:

5. I have reviewed the medical records for

the above individual. The mother, Kikilia

Snell was a 35 year old G3 P 2002 with a

history of Diabetes managed with diet.

Maternal weight was > 300 lbs. Diabetes was

poorly controlled. Her HbA 1C was

significantly elevated at 8.7% at her initial

prenatal visit. Normal would be < 6%.="" h="" b="">

is a reflection of blood glucose levels over

the past several weeks. I did not see any

medical records concerning further management

of the Diabetes during pregnancy.

6. The mother presented to her physician at

38 weeks gestational age with the complaint

of not feeling the baby move fo r one day.

She was sent to the hospital for delivery.

7. Hydramnios was diagnosed at time of

rupture of the membranes. The fetal heart

rate (FHR) monitor during labor was reviewed.

The FHR tracing was abnormal on admission to

the hospital and progress ively worsened

during labor. The initial FHR pattern showed

a normal baseline heart rate, but markedly

reduced variability. Variable FHR

decelerations began about three hours after

admission with FHR variability essentially

absent. The abnormal FHR patt ern progressed

to terminal bradycardia with a heart rate of

about 40 bpm when the monitor was removed for

delivery.

8. Emergency Cesarean section was done for

the abnormal FHR pattern. Birth weight was

4,735 grams. There was no heart rate

detected at b irth. Apgar scores were 0/0.

Resuscitation was unsuccessful and death was

pronounced. A heart rate was never obtained

after birth or during resuscitation.

9. Autopsy found a thin subdural hemorrhage

and enlarged fetal organs.

10. In summary, the mot her was a poorly

controlled diabetic that presented at 38

weeks with no fetal movement for one day.

FHR monitoring during labor was consistent

with severe fetal distress. Emergency

Cesarean section delivery resulted in a still

birth. There was no heart rate at delivery

and no heart rate was obtained during

resuscitation. Resuscitation was stopped and

the baby pronounced dead shortly after birth.

11. There was an apparent obstetrical [sic]

even that resulted in loss of oxygen to the

fetus during labor and delivery. The oxygen

deprivation resulted in demise stillbirth.

The baby could not be resuscitated and

pronounced dead shortly after birth. This

was not a live birth.

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

been no expert opini on filed that is contrary to the opinion of

Dr. Willis. The opinion of Dr. Willis that there was an apparent

obstetrical event that resulted in loss of oxygen to the fetus

during labor and delivery which resulted in demise stillbirth,

that the baby could not be resuscitated and was pronounced dead

shortly after birth, 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. Stat.

6. The inj ured 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.

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 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 Sta tutes.

§§ 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 -

related neurologic al 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

perman ently 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 physici an 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 t he

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 deliv ered 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

inf ant 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

resuscit ation 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 the

birth of Ky'Mon was not a live birth. Theref ore, Petitioner 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 Kikilia Snell , a s

parent and natural guardian of Ky'Mon Travis , is dismissed with

prejudice.

DONE AND ORDERED this 23rd 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 Pa rkway

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 23rd day of October , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7012 3050 0001 0079 5622)

Kikilia Snell

2431 Sapp Road , Lot 4

Cottondale, Florida 3243 1

(Certified Mail No. 7012 3050 0001 0079 5639)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

( Certified Mail No. 7012 3050 0001 0079 5646 )

Amie Rice, Investigation Manage r

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0001 0079 5653)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mah an Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0001 0079 5660)

Orlando S . Muniz, M.D.

4230 Hospital Drive , Suite 209

Marianna, Florida 32446

(Certified Mail No. 7012 3050 0001 0079 5677)

Jackson Hospital

Attention: Risk Management

4250 Hospital Drive

Marianna, Florida 32446

(Certified Mail No. 7014 1200 0002 3336 4303)

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 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 Neu rological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).