14-003031N Megan Exantus, On Behalf Of And As Parent And Natural Guardian Of Kaidyn Hancock, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 15, 2015.

Summary: Child did not suffer an injury to the brain or spinal cord caused by oxygen deprivation during labor, delivery, or in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEGAN EXANTUS, on behalf of and

as parent and natural guardian

of KAIDYN HANCOCK, a minor,

Petitioner,

vs. Case No. 14 - 3031N

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 Compensation Associati on (NICA), on July 8,

2015.

STATEMENT OF THE CASE

On June 20, 2014, Petitioner, Megan Exantus, on behalf of

and as parent and natural guardian of Kaidyn Hancock (Kaidyn), a

minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 e t 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 Glenda A.

Phillips, ARNP, CNM, as the nurse/midwif e providing obstetrical

services at the birth of Kaidyn on January 30, 2012, at Memorial

Hospital Jacksonville located in Jacksonville, Florida.

DOAH served NICA and Memorial Hospital Jacksonville with a

copy of the Petition on July 1, 2014. DOAH served G lenda A.

Phillips, ARNP, CNM, with a copy of the Petition on July 2, 2014.

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

petition to intervene has been filed by Memorial Hospital

Jacksonville or Glenda A. Phillips, ARNP, CNM.

On July 8, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On July 8, 2015, Petitioner filed

a Response to the Motion for Summary Final Order serving notice

that Petitioner will not be filing any substantive response to

NICAÓs Motion for Summary Final Order.

FINDINGS OF FACT

1. Kaidyn was born on January 30, 2012, at Memorial

Hospital Jacksonville located in Jacksonville, Florida. Kaidyn

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 Kaidyn. In a medical report

dated August 20, 2014, Dr. Willis opined as follows:

In summary, pregnanc y, labor and delivery

were essentially uncomplicated. There was no

fetal distress during labor. Spontaneous

vaginal delivery was uncomplicated.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs br ain during labor,

delivery or the immediate post delivery

period.

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

a pediatric neurologist, to examine Kaidyn and to review her

medical records. Dr. Duchowny examined Kaidyn on September 24,

20 14. In a medical report dated September 30, 2014, regarding

his independent medical examination of Kaidyn, Dr. Duchowny

opined as follows:

In summary, KaidynÓs neurologic examination

reveals findings consistent with a

substantial mental and physical impai rment.

She has spastic quadriparesis, microcephaly,

and absence of both expressive and receptive

language ability. She additionally evidences

mid - facial dysmorphism. There is no

significant lateralization to her findings.

I reviewed records sent from y our office

which were sent on May 21, 2014 and confirm

the familyÓs impression of a relatively

normal prenatal course and labor and delivery

with the single exception of meconium - stained

amniotic fluid ingestion. KaidynÓs Apgar

scores were 6 and 9 at 1 & 5 minutes and she

did not require intubation or ventilatory

support. There is no evidence of multi - organ

system involvement or neurologic dysfunction

and both mother and child were discharged

from the hospital at the usual time.

In view of these finding s together with a

normal MRI scan of the brain obtained on

November 6, 2012, I consider it unlikely that

KaidynÓs neurologic impairments were acquired

in the course of labor or delivery. Rather,

KaidynÓs present disabilities are more likely

to result from unknown prenatal factors,

possibly genetic in origin. I therefore do

not recommend that Kaidyn be considered for

compensation within the NICA program.

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 apparent obstetrical

event that resulted in loss of oxygen or mechanical trauma to the

baby's brain during labor, delivery, or the immediate post -

delivery period. Dr. WillisÓ opinion is credited. Th ere are no

expert opinions filed that are contrary to Dr. DuchownyÓs opinion

that although KaidynÓs examination reveals findings consistent

with a substantial mental and physical impairment, her

impairments did not result from either oxygen deprivation or

mechanical injury acquired in the course of labor or delivery.

Dr. DuchownyÓs 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.

§§ 766.30 1 - 766.316, Fla. Stat.

6. 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.

7. 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. N ICA,

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 neurologi cal

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 j udge 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 c hapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

9. 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 b irth -

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 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 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 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 obstetri cal services

were delivered by a participating physician at birth."

§ 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 s pinal 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 labo r, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Kaidyn 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, Kaidyn 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. The Petition filed by Megan Exantus, on behalf of Kaidyn

Hancock, is dismissed with prejudice.

2. The final hearing scheduled for July 28, 2015, is

cance lled.

DONE AND ORDERED this 15th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 15th day of July , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Directo r

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0791)

David Ryan Best, Esquire

Best Law Firm Florida, P.A.

Post Office Box 3306

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0807)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0814)

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 1053 0821)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Adm inistration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1053 0838)

Glenda A. Phillips, ARNP, CNM

North Florida OB/GYN Associates, PA

6410 Beach Boulevard

Jacksonville, Florida 32216

(Certified Mail No. 701 4 2120 0003 1053 0845)

Memorial Hospital Jacksonville

Attention: Risk Management

3625 University Boulevard South

Jacksonville, Florida 32216

(Certified Mail No. 7014 2120 0003 1053 0852)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order o f 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 o riginal 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 Di strict 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).