14-004041N Paula Dally, Individually And On Behalf Of Michael Paul Dally, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Wednesday, April 15, 2015.

Summary: Child did not sustain an injury to the brain caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAULA DALLY, Individually and on

behalf of MICHAEL PAUL DALLY, a

minor,

Petitioner,

vs. Case No. 14 - 4041N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

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 Association (NIC A), on April 2,

2015.

STATEMENT OF THE CASE

On August 21, 2014, Petitioner, Paula Dally, individually

and on behalf of Michael Paul Dally (Michael), a minor, filed a

Petition under Protest Pursuant to Florida Statute Section

766.301 et seq. (Petition) wit h the Division of Administrative

Hearings (DOAH) for a determination of compensability under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Meredith Johnson Farrow, M.D., as the

physician providing obstetrical s ervices at the birth of Michael

on January 2, 2012, at Baptist Medical Center Beaches located in

Jacksonville, Florida.

DOAH served NICA with a copy of the Petition on August 28,

2014. DOAH served Meredith Johnson Farrow, M.D., on September 2,

2014. On S eptember 2, 2014, DOAH received a return receipt from

the United States Postal Service showing that Baptist Medical

Center Beaches had been served with a copy of the Petition.

Neither Meredith Johnson Farrow, M.D., nor Baptist Medical

Center Beaches ha s petitioned to intervene in this proceeding.

On April 2, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. It is noted that the Petition was

filed ÐUnder ProtestÑ and that Petitioner is described therein as

Ðnot a claimant.Ñ Moreover, in a Joint Response to Order filed

by the parties on February 26, 2015, NICA represented that

Petitioner agreed that a hearing is not necessary in this matter.

FINDINGS OF FACT

1. Michael Paul Dally was born on January 2, 2012, at

Baptist Medical Center Beaches located in Jacksonville, Florida.

Michael weighed in excess of 2,500 grams at birth.

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

to review the medical records for Michael. In a medical report

dated November 10, 2014, Dr. Willis described his findings as

follows:

Delivery was by spontaneous vaginal delivery.

Birth weight was 3,657 grams. The baby was

not depressed. Apgar scores were 9/9. The

delivery was felt to be uncomplicated.

The newborn hospital course was

uncomplicated. The baby was discharged from

the hospital on DOL 2.

In summary, the mother presented in active

labor and had an uncomplicated spontaneous

vaginal delivery. The baby was not depressed

at birth and had an uncomplicated newborn

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. NICA retained Raymond J. Fernandez, M.D.

(Dr. Fernandez), a pediatric neurologist, to examine Michael and

to review his medical records. Dr. Fernandez examined Michael on

January 21, 2015. In a medical report dated January 25, 2015,

Dr. Fernandez opined as follows:

IMPRESSION:

There is no evidence in the medical record,

nor is there evidence based on history for

oxygen deprivation during labor, delivery,

and the immediate post delivery period.

There was no re suscitation necessary in the

delivery room. MichaelÓs neurological

development has been normal. His general

physical examination and his

neurodevelopmental examination are normal.

There is no evidence whatsoever for any

degree of brain injury, mental or motor

disability, or oxygen deprivation during

labor, delivery, or the post delivery period.

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 no apparent obs tetrical event that

resulted in loss of oxygen or mechanical trauma to the baby's

brain during labor, delivery, or the immediate post - delivery

period, and Petitioner has no objection to the issuance of a

summary final order finding that the injury is not c ompensable

under the plan. Dr. WillisÓ opinion is credited. There are no

contrary opinions filed that are contrary to Dr. FernandezÓs

opinion that there is no evidence of any degree of brain injury,

mental or motor disability, or oxygen deprivation in th e course

of labor, delivery, or the post - delivery period. Dr. FernandezÓs

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.

§§ 766.301 - 76 6.316, 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 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.

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 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 chapt er 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 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 ther eby

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 pa rticipating 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 obstetrical 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 spina l 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, d elivery, 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

Michael did not sustain an in jury to the brain caused by oxygen

deprivation or mechanical injury in the course of labor,

delivery, or in the immediate post - delivery period. Therefore,

Michael is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings o f Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Paula Dally,

individually and on behalf of Michael Paul Dally, is dismissed

with prejudice.

DONE AND ORDERED this 15th day of April , 201 5 , in

Tallahassee, 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 wi th the Clerk of the

Division of Administrative Hearings

this 15th day of April , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Pl ace, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1439)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Ave.

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1446)

M. Ma rk Bajalia, Esquire

Bajalia, Sanders and Bajalia, P.A.

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1453)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

405 2 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 1460)

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 1053 1477)

Meredith Johnson Farrow, M.D.

University of Florida Beaches

Women Health Specialists

390 16th Avenue, South, Suite 4

Jacksonville Beach, Florida 32250

(Certified Mail No. 7014 2120 0003 1053 1484)

Baptis t Medical Center Beaches

Attention: Risk Management

1350 13th Avenue, South

Jacksonville, Florida 32250

(Certified Mail No. 7014 2120 0003 1053 1491)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

b y 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 Neurological

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

1992).