14-003732N Aimee Felix Crump, On Behalf Of And As Parent And Natural Guardian Of Robert Charles Crump, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 19, 2016.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIMEE FELIX CRUMP, on behalf of

and as parent and natural

guardian of ROBERT CHARLES

CRUMP, a minor,

Petitioner,

vs. Case No. 14 - 3732N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

R espondent.

_______________________________/

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 March 9,

2016.

STATEMENT OF THE CASE

On August 14, 2014, Petitioner, Aimee Felix Crump, on behalf

of and as parent and natural guardian of Robert Charles Crump

(ÐCharlieÑ), 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 (Plan). The Petition named Amy D.

Greenwald, M.D., as the physician providing obstetrical services

at the birth of Charlie on August 15, 2009, at Baptist South

Hospital located in Jacksonville, Florida.

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

2014. On August 22, 2014, DOAH received a re turn receipt from

the United States Postal Service showing that Baptist South

Hospital and Amy D. Greenwald, M.D., had been served with a copy

of the Petition.

As of the date of this Summary Final Order of Dismissal,

neither Dr. Greenwald nor Baptist S outh Hospital has petitioned

to intervene in this proceeding.

The parties filed two Joint Motions to Abate the case to

allow Petitioner additional time to evaluate the medical

condition of Charlie. The Motions were granted and the case was

held in abeyan ce for 18 months.

On March 9, 2016, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. The motion was served on March 9 ,

2016 . An Order to Show Cause was entered on March 22, 2016,

advising Petitioner to show cause in writing on or before

April 12, 2016, why RespondentÓs Motion for Summary Final Order

should not be granted. As of the date of this Summary Final

Order of D ismissal, no response was filed to the Motion for

Summary Final Order or the Order to Show Cause.

FINDINGS OF FACT

1. Robert Charles Crump was born on August 15, 2009, at

Baptist South Hospital located in Jacksonville, Florida. Charlie

weighed 2,505 grams at birth.

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

to review the medical records for Charlie, to determine whether

an injury occurred to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the c ourse of

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

period. In a medical report dated September 17, 2014, Dr. Willis

described his findings in part as follows:

In summary, the mother presented at 34 weeks

with premature rupture of th e membranes in

early labor . Variable HFR [sic]

decelerations developed during the last two

hours prior to delivery. Cesarean section

was done for the non - reassuring FHR pattern.

The newborn was depressed. The newborn

hospital course was complicated by

respiratory depression, hypotension and one

episode of apnea. Although the baby was

discharged home with a normal exam, MRI at 16

months of age was done for evaluation of a

weak left hand and found a prior cerebral

stroke.

It is likely the baby suffere d some degree of

oxygen deprivation during labor, delivery

and/or in the immediate post resuscitation

period. However, it is less clear that any

oxygen deprivation during this time period

resulted in brain injury. No head imaging

studies were done during the newborn hospital

course. The child did suffer a stroke, which

was documented at 16 months of age by MRI.

There was an apparent obstetrical event that

likely resulted in some degree of oxygen loss

to the babyÓs brain during labor, delivery

and continu ed into the immediate post

delivery period. Without imaging studies

during the newborn hospital course, I am

unable to determine if this oxygen

deprivation resulted in the childÓs brain

injury (stroke). Pediatric Neurology

evaluation would be helpful in this

determination.

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

March 8, 2016.

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

a pediatric neurologist, to examine Charlie and to review his

medical records. Dr. Duchowny examine d Charlie on November 5,

2014. In a medical report dated November 5, 201 4 , Dr. Duchowny

opined as follows:

In summary, CharlieÓs general physical and

neurological examinations reveal a mild left

hemiparesis, notable mainly for asymmetry of

movement. His muscle tone is well - preserved

and he has full range of movement bilaterally

with the exception of full left supination.

Charlie is functioning cognitively at age

level. He has done remarkably well in his

therapies.

I reviewed the medical records sent on

October 14, 2014. They document CharlieÓs

birth at 34 weeks gestation at Baptist

Medical Center South in Jacksonville

following premature rupture of membranes

productive of blood - tinged amniotic fluid.

Charlie was born by emergent Caesarian

section for arrest of descent and presented

limp, apneic and cyanotic. Apgar scores were

2 and 7 at 1 and 5 minutes. He was

resuscitated via bag and mask and breathed

spontaneously at just over 2 minutes. His

NICU stay was complicated by apnea and

bradycardia which resolved fully and

transient respiratory depression. Charlie

was never intubated or mechanically

ventilated and was maintained on room air

from August 17 th until discharge on

August 24 th . No neonatal brain imaging was

performed. MRI scan of the brain o n

February 8, 2011 revealed an old ischemic

infarct involving the anterior limb of the

right internal capsule. The remainder of the

brain was normal. A consideration of the

findings from todayÓs evaluation and record

review lead me to recommend that Char lie not

be considered for compensation within the

NICA program. He has normal mental

functioning and a mild motor deficit.

Furthermore, his stroke was likely acquired

prenatally, and there is no evidence of

either mechanical injury or oxygen

deprivation i n the course of labor, delivery

or the immediate post - delivery period.

5. Dr. Duchowny reaffirmed his opinions in an affidavit

dated February 24, 2016.

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 an apparent obstetrical

event that likely resulted in some degree of oxygen loss to the

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

delivery period. Dr. WillisÓ opinion is credited. Ther e are no

expert opinions filed that are contrary to Dr. DuchownyÓs opinion

that Charlie has normal mental functioning and a mild motor

deficit, and that his stroke was likely acquired prenatally.

Dr. DuchownyÓs 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, irrespec tive 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 compe nsation 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 respons e 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 the injury alleged in a claim

is a compensable birth - r elated 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.

11. In discharging this responsibility, the a dministrative

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 tha t 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

ho spital; 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 sustai ned 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.

12. The term "birth - relate d 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

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 in a hospital, which renders the

infant permanently an d substantially mentally

and physically impaired.

13. ÐThe statute is written in the conjunctive and can only

be interpreted to require permanent and substantial impairment

that has both physical and mental elements.Ñ Fla. Birth - Related

Neurological In jury Comp. AssÓn. v. Fla. Div. of Admin. Hearings ,

686 So. 2d 1349, 1356 (Fla. 1997). As the evidence establishes

that Charlie has normal mental functioning, and a mild motor

deficit, Charlie is not eligible for benefits under the Plan.

§§ 766.302(2) and 766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Aimee Felix Crump,

on behalf of and as parent and natural guardian of Robert Charles

Crump, is dismissed with p rejudice.

DONE AND ORDERED this 19th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 19th day of April , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8963)

Aimee Felix Crump

8813 Canopy Oaks Drive

Jacksonville, Flori da 32256

(Certified Mail No. 7014 1200 0002 3330 8970)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8987)

Amie Rice, Investigation Manager

Consum er Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 1200 0002 3330 8994)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 9007)

Baptist South Hospital

Attention: Risk Management

14550 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 1200 0002 3330 9014)

A my D. Greenwald, M.D.

North Florida OB/GYN

Suite 311

14546 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 1200 0002 3330 9021)

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 p peal

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).