14-002978N Katherine Nobles, A/K/A Katherine Johnson, On Behalf Of And As Parent And Natural Guardian Of Jinger-Anne Nobles, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 9, 2015.

Summary: Child did not sustain an 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

KATHERINE NOBLES, a/k/a

KATHERINE JOHNSON, on behalf of

and as parent and natural

guardian of JINGER - ANNE NOBLES,

a minor,

Petitioner,

vs. Case No. 14 - 2978N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATIO N

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

Neurolog ical Injury Compensation Association (NICA), on

February 25, 2015.

STATEMENT OF THE CASE

On June 19, 2014, Petitioner, Katherine Nobles, a/k/a

Katherine Johnson, on behalf of and as parent and natural

guardian of Jinger - Anne Nobles (Jinger - Anne), 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 Injury Compensation Plan (P lan). The

Petition named Shivakumar Hanubal, M.D., as the physician

providing obstetrical services at the birth of Jinger - Anne on

February 14, 2011, at Leesburg Regional Medical Center located in

Leesburg, Florida.

DOAH served NICA with a copy of the Peti tion on June 26,

2014. DOAH served Leesburg Regional Medical Center with a copy

of the Petition on June 30, 201 4 . DOAH served Shivakumar

Hanubal, M.D., with a copy of the Petition on October 27, 2014.

On February 25, 2015, NICA filed a Motion for Summa ry Final

Order, asserting that Jinger - Anne did not sustain a "birth -

related neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

As of the date of this Summary Final Order of Dismissal, no

petitions to intervene have been filed by Dr. Hanubal or Leesburg

Regional Medical Center.

FINDINGS OF FACT

1. Jinger - Anne Nobles was born on February 14, 2011, at

Leesburg Regional Medical Center located in Leesburg, Florida.

Jinger - Anne weighed in excess of 2,500 grams at birth.

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

to review the medical records for Jinger - Anne . In a medical

report dated July 14, 2014, Dr. Willis opined as follows:

I have reviewed the medical records for the

above individual. The mother, K atherine

Johnson, was a 26 year old G4 P2 with no

significant prenatal problems. The mother

presented to the hospital in early labor at

38 weeks gestational age. Antibiotics were

given during labor for a positive vaginal

culture for Group B Streptococcus . Amniotic

membranes were ruptured with clear fluid.

Fetal heart rate (FHR) monitor tracing during

labor was reviewed. Baseline heart rate was

135 bpm with normal variability. There was

no fetal distress during labor.

Spontaneous vaginal delivery was

uncomplicated. Birth weight was 2,890 grams.

Apgar scores were 8/9. The newborn was not

depressed. No resuscitation was required.

The baby was taken to the nursery and stated

to be in stable condition. Newborn hospital

course was uncomplicated.

The ba by was re - admitted to the hospital

twice during the first two weeks after birth.

The first was two days after newborn hospital

discharge. This admission was for elevated

bilirubin level. The second was for choking

and vomiting with possible cyanosis. No

etiology was discovered and the baby was

discharged home.

In summary, the baby was delivered at term by

spontaneous and uncomplicated vaginal birth.

There was no fetal distress during labor.

The newborn was not depressed and had a

normal hospital course .

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

period.

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

December 29, 20 14.

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

a pediatric neurologist, to examine Jinger - Anne and to review her

medical records. Dr. Duchowny examined Jinger - Anne on October 1,

2014. In an affidavit date d December 22, 2014, regarding hi s

independent medical examination of Jinger - Anne, Dr. Duchowny

opined as follows:

In summary, Jinger - AnneÓs examination reveals

findings consistent with a substantial mental

and motor impairment. She evidences spastic

quadriparesis, microcephaly, cortical visual

impairment, optic nerve atrophy, no evidence

of receptive or expressive language

development, and generalized hyperreflexia.

I have had an opportunity to review medical

records sent on May 21, 2014. They document

the pre and pe r inatal history and provide

evidence of hyperbilirubinemia, but only to a

level of 15. Jinger - AnneÓs mother ha d

presented to the hospital in early labor and

had artificial rupture of membranes. Her

mother had a postpartum tubal ligation.

Jinger - AnneÓs Apgar scores were 8 and 9 at 1

and 5 minutes and her birth weight was 6

pounds 6 ounces. Cord blood gases were not

drawn and apart from hyperbilirubinemia, her

postnatal course was uncomplicated. Her

readmission on February 18 documented a rapid

rise in bilirubin, reaching a peak level of

15.4. She was also di agnosed with an acute

life - threatening event which after evaluation

was believed to be caused by gastro

esophageal reflux.

I have not yet received either of the MRI

scans. Although Jinger - AnneÓs course would

be extr emely atypical of kernicterus as most

affected individuals have normal cognitive

status and present with findings consistent

with athetotic cerebral palsy, I believe it

is pr u dent to review the MR images in this

case before making a final recommendation

wi th regard to consideration for acceptance

into the NICA program.

ADDENDUM: I have reviewed the brain MR

images obtained on July 8, 2011. The study

reveals no significant abnormalities. Of

note, the basal ganglia and thalami are

normal. The study findi ngs support my

initial impression that Jinger - AnneÓs

neurological problems did not result from

hyperbilirubinemia , mechanical injury or

oxygen deprivation acquired in the course of

labor, delivery or the immediate post -

delivery period.

5. A review of t he 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, de livery, or the immediate post -

delivery period. Dr. WillisÓ opinion is credited. There are no

expert opinions filed that are contrary to Dr. DuchownyÓs opinion

that although Jinger - AnneÓs examination reveals findings

consistent with a substantial mental a nd motor impairment, her

neurological problems did not result from hyperbilirubi n emia,

mechanical injury or oxygen deprivation acquired in the course of

labor, delivery or the immediate post - delivery period.

Dr. DuchownyÓs opinion is credited.

CONCLU SIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

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

§§ 766.301 - 766.316, Fla. Stat.

7. The Plan was established by the Legislature "for the

purpose of providing compe nsation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

8. The injured infant, her or his personal representative,

parents, dependents, and next of k in 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.

9. If NICA determines that the injury alleged in a claim is

a com pensable 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.

10. In discharging this respo nsibility, 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

administr ative 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 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 in the

course of labor, delivery, or resuscitation

in the immediate postdeliver y 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 hospital.

§ 766.309(1), Fla. Stat. An awa rd 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.

11. The te rm "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

mul tiple 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 in a hospital, which renders the

infan t permanently and substantially mentally

and physically impaired.

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

Jinger - Anne did not sustain an 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. Therefore, Jinger - Anne is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that :

1. T he Petition filed by Katherine Nobles, a/k/a Katherine

Johnson, on behalf of Jinger - Anne Nobles, is dismissed with

prejudice.

2. The final hearing scheduled for March 23, 2015, is

cancelled.

DONE AND ORDERED this 9th day of March , 2015 , in

Tallahas see, 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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Ass ociation

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2229)

David Ryan Best, Esquire

Best Law Firm Florida, P.A.

Post Office Box 3306

Orlando, Florida 32802

(eServed)

(Certified Mail No. 70 14 2120 0003 1048 2236)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2243)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of H ealth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1048 2250)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Flori da 32308

(Certified Mail No. 7014 2120 0003 1048 2267)

Leesburg Regional Medical Center, Inc.

Attention: Risk Management

600 East Dixie Avenue

Leesburg, Florida 34748

(Certified Mail No. 7014 2120 0003 1048 2274)

Shivakumar Hanubal, M.D.

Advanced Obst etrics/Gynecology

1414 East Main Street

Leesburg, Florida 34748

(Certified Mail No. 7014 2120 0003 1048 2281)

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 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 Ne urological

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

1992).