14-003625N Clara Lyle And Demetris Walker, On Behalf Of And As Parents And Natural Guardians Of Uzziah Walker, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 22, 2015.

Summary: Child suffered brain injury but it has not rendered the child permanently and substantially mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARA LYLE AND DEMETRIS WALKER,

on behalf of and as parents and

natural guardians of UZZIAH

WALKER, a minor,

Petitioners,

vs. Case No. 14 - 3625N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATIO N,

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 C ompensation Association (NICA), on June 15,

2015.

STATEMENT OF THE CASE

On May 12, 2014, Petitioners, Carla Lyle and Demetris

Walker, on behalf of and as parents and natural guardians of

Uzziah Walker (Uzziah), a minor, filed a Petition for Benefits

Pursu ant 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

Tracy A. T homas - Doyle, M.D., as the physician providing

obstetrical services at the birth of Uzziah on November 23, 2012,

at Sacred Heart Hospital located in Pensacola, Florida.

DOAH served NICA with a copy of the Petition on August 8,

2014. DOAH served Tracy A. Th omas - Doyle, M.D., with a copy of

the Petition on August 11, 2014. DOAH served Sacred Heart

Hospital with a copy of the Petition on October 26, 2014.

Neither Tracy A. Thomas - Doyle, M.D., nor Sacred Heart

Hospital has petitioned to intervene in this p roceeding.

On June 15, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

An Order to Show Cause was entered on June 30, 2015,

advising Petitioners to show cause in writing no later than

June 17, 2015, why RespondentÓs Motion for Summary Final Order

should not be granted. To date, no response has been filed.

FINDINGS OF FACT

1. Uzziah Walker was born on Novem ber 23, 2012, at Sacred

Heart Hospital located in Pensacola, Florida. Uzziah 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 Uzziah. In an affidavit dated

May 24, 20 15, Dr. Willis described his findings in pertinent part

as follows:

10. In summary, there was no apparent fetal

distress during labor. Spontaneous vaginal

delivery resulted in a large sub ga leal

hemorrhage with blood loss and poor

perfusion. The baby was not hypoxic at

birth. Cord blood gas was normal (pH 7.25).

However, blood loss from the scalp hemorrhage

and poor perfusion resulted in

intraventricular hemorrhage during the

immediate post delivery period.

11. There was an apparent obstetrical event

t hat resulted in scalp hemorrhage and poor

perfusion with loss of oxygen to the babyÓs

brain during the immediate post delivery

period. The poor perfusion resulted in brain

injury. I am unable to comment about the

severity of the brain injury.

3. NICA r etained Michael Duchowny, M.D. (Dr. Duchowny), a

pediatric neurologist, to examine Uzziah and to review his

medical records. Dr. Duchowny examined Uzziah on March 11, 2015.

In an affidavit dated May 29, 2015, Dr. Duchowny opined in

pertinent part as foll ows:

19. Review of medical records and imaging

studies sent on February 4 and 6, 2015 was

performed. They detail UzziahÓs birth at

Baptist Hospital Health System in Pensacola

with a forceps assisted delivery after a

rapid decent. Uzziah evidenced tachyc ardia

and some retractions at the time of delivery

but his Apgar scores were 7 and 8. He was

observed to have a subgaleal hematoma; a CT

scan of the brain on November 23 revealed a

large soft tissue hematoma and a small

collection of subdural blood over t he right

cerebellar tent with a small amount of right

ventricular hemorrhage. Of note, there was

no cerebral edema or ventricular compression.

No skull fractures were noted despite

bilateral subgaleal hematomas. The neonatal

course was otherwise uncompl icated.

20. In summary, UzziahÓs neurological

examination today reveals normal findings.

He does not exhibit either mental or physical

impairment and his overall development has

caught up and is proceeding in an age

appropriate fashion. I believe that UzziahÓs

perinatal hematomas were resorbed without

residual brain injury and his future

prognosis is excellent. I explained to his

family that Uzziah is doing very well and

that his fu t ure is favorable from a

prognostic standpoint. Given UzziahÓs normal

neurological status today, I am not

recommending compensation with the NICA

program.

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

have been no opinions filed that are contrary to the opinion of

Dr. Willis that there was an apparent obstetrical event that

resulted in scalp hemorrhage and poor perfusion with loss of

oxygen to the baby's brain during the immediate post - delivery

period , and that the poor perfusion resulted in brain injury .

Dr. WillisÓ opinion is credited. There are no opinions fi led

that are contrary to Dr. DuchownyÓs opinion that Uzziah Ós overall

development is proceeding in an age appropriate fashion and does

not exhibit either mental or physical impairment. Dr. DuchownyÓs

opinion is credited.

CONCLUSIONS OF LAW

5. The Di vision 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 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. NICA,

which administers the Plan, has "45 days from the date of service

of a complete claim . . . in which to file a response to th e

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 n eurological 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.

9. In discharging this responsibility, the administra tive

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 physically impaired, a

rebuttable presumption shall arise that the

inj ury 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; o r 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 obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

10. The term "birth - related neurolo gical 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 i nfant 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

infant permanently and substan tially mentally

and physically impaired.

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

there was an apparent obstetrical event that resulted in scalp

hemorrhage and poor perfusion with loss of oxygen to the babyÓs

brain during the immediate p ost - delivery period , which resulted

in brain injury . However , the evidence established that Uzziah

is developing in an age appropriate fashion and does not exhibit

either mental or physical impairment. Because section 766.302(2)

requires that the brain i njury render the infant permanently and

substantially mentally and physically impaired, Uzziah 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 Clara Lyle and

Demetris Walker, on behalf of and as parents and natural

guardians of Uzziah Walker, is dismissed with prejudice, and the

final hearing scheduled for September 9, 2015, is canceled.

DONE AND ORDERED this 22nd day of July , 2015 , in

Tallaha ssee, 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 22nd day of July , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation As sociation

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1047 5832)

Demetris Walker

Clara Lyle

Apartment 216BB

700 West Truman Avenue

Pensacola, Florida 32505

(Certified Mail No. 7014 2120 0003 10 47 5825)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7014 2120 0003 1047 5818)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Healt h

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1047 5801)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1047 5795)

Sacred Heart Hospital

Attention: Risk Management

5151 North 9th Avenue

Pensacola, Florida 32504

(Certified Mail No. 7014 2120 0003 1047 5788)

Tracy A. Thomas - Doyle, M.D.

3417 North 12th Avenue

Pensaco la, Florida 32503

(Certified Mail No. 7014 2120 0003 1047 5771)

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 Statut es. 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 rend ition 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).