14-004277N Octavia Pierson, On Behalf Of And As Parent And Natural Guardian Of Kaleah Turner, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 2, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCTAVIA PIERSON, on behalf of

and as parent and natural

guardian of KALEAH TURNER, a

minor,

Petitioner,

vs. Case No. 14 - 4277N

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 Associa tion (NICA), on March 26,

2015.

STATEMENT OF THE CASE

On September 12, 2014, Petitioner, Octavia Pierson, on

behalf of and as parent and natural guardian of Kaleah Turner

(Kaleah), 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 Johanne

Compas - Baril, M.D., as the physi cian providing obstetrical

services at the birth of Kaleah on September 14, 2009, at Jackson

North Medical Center located in North Miami Beach, Florida.

DOAH served NICA with a copy of the Petition on

September 19, 2014. DOAH served Johanne Yves Compas - Ba ril, M.D.,

and Jackson North Medical Center on September 22, 2014.

Neither Johanne Compas - Baril, M.D., nor Jackson North

Medical Center has petitioned to intervene in this proceeding.

On March 26, 2015, NICA filed a Motion for Summary Final

Order, a sserting that Kaleah did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On April 1, 2015, Petitioner filed

an Objection and Response to Motion for Summary Final Order. A

telephonic motio n hearing was held on April 1 3 , 2015. On May 27,

2015, Petitioner filed an Amended Response to RespondentÓs Motion

for Summary Final Order stating that Petitioner does not oppose

the motion.

FINDINGS OF FACT

1. Kaleah Turner was born on September 14 , 2009, at Jackson

North Medical Center located in North Miami Beach, Florida.

Kaleah 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 Kaleah . In a medical report

dat ed February 26, 2015, Dr. Willis described his findings as

follows:

In summary, the mother presented at 36 weeks

with rupture of the membranes and in labor.

Although there were some variable FHR

decelerations during labor, the baby was not

depressed at bir th. Apgar scores were 9/9.

Mild respiratory distress was present a few

hours after birth, and did not require

intubation. MRI showed subtle abnormalities

in the white matter adjacent to the lateral

ventricles.

I am unsure about the significance of the M RI

findings. However, the baby was not

depressed at birth and went to the normal

nursery, consistent with no significant birth

related hypoxic event.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the bab yÓs brain during labor,

delivery or the immediate post delivery

period.

3. In an affidavit dated March 23, 2015, Dr. Willis

reaffirmed his opinion that there was no apparent obstetrical

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

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

delivery period.

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

pediatric neurologist, to examine Kaleah and to review her

medical records. Dr. Duchowny examined Kaleah on February 25,

2 015. In an affidavit dated March 18, 2015, Dr. Duchowny opined

as follows:

It is my opinion that KALEAH TURNERÓs

neurological examination reveals no abnormal

findings. She is developing at age level and

shows no associated problems with either

mental or physical abilities.

A review of her medical records likewise

discloses no significant findings to suggest

that a mechanical injury or that a period of

oxygen deprivation occurred during either

labor or delivery.

Based [on] my evaluation and record review , I

am not recommending KALEAH for inclusion

within the NICA program.

5. 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 obstetrical event that

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

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

period, and Petitioner does not oppose NICAÓs Motion for Summary

Final Order finding that the injury is not compensable under the

plan. Dr. WillisÓ opinion is credited. There are no contrary

opinions filed that are contrary to Dr. DuchownyÓs opinion that

Kaleah is developing at age level and shows no associated

problems with either mental or physical abilities, and that the

medical recor ds disclose no significant findings to suggest that

a mechanical injury or that a period of oxygen deprivation

occurred during either labor or delivery. Dr. DuchownyÓs opinion

is credited.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings h as 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 compensation, irrespective of fault, for

birth - related neurologi cal 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 kin may seek compensation under

the Plan by filing a claim f or 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 w ritten 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 compensable birth - related neurological injury, it may award

co mpensation 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 responsibility, the administrative

law judge must make the follo wing 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 s pinal 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 neurologica l 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 co ncludes 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 term "birth - related neurological injury" is defined

in sectio n 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 gram s 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 substantially mentally

and physically imp aired.

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

there was no apparent obstetrical event that resulted in oxygen

deprivation or mechanical trauma to the babyÓs brain in the

course of labor, delivery, or in the immediate post - delivery

peri od. Further, the evidence established that Ka leah is

developing at age level and shows no associated problems with

either mental or physical abilities. Therefore, Kaleah is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Fi ndings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Octavia Pierson, on

behalf of and as parent and natural guardian of Kaleah Turner, is

dismissed with prejudice, and the final hearing scheduled for

August 4, 2015, is canceled.

DONE AND ORDERED this 2nd day of June, 2015, 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 with the Clerk of the

Division of Administrative Hearings

this 2nd day of June , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Flo rida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1052 8040)

Darryn L. Silverstein, Esquire

Silverstein, Silverstein and Silverstein, P.A.

20801 Biscayne Boulevard , Suite 504

Aventura, Florida 33180

(eServed)

(Certified Mail No. 7014 2120 0003 1052 8057)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mai l No. 7014 2120 0003 1052 8064)

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 1052 8071)

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 1052 8088)

Jackson North Medical Center

Attention: Risk Management

160 Northwest 170th Street

North Miami Beach, Florida 33169

(Certified Mail No. 7014 2120 0003 1052 8095)

Johanne Yves Compas - Baril, M.D.

17874 Northwest 2nd Street

Pembroke Pines, Florida 33029

(Certified Mail No. 7014 2120 000 3 1052 8101)

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 b y 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).