14-004570N Donta And Kenia Wilson, On Behalf Of And As Parents And Natural Guardians Of Dondraya Wilson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 22, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONTA AND KENIA WILSON, on

behalf of and as parents and

natural guardians of DONDRAYA

WILSON, a minor,

Petitioners,

vs. Case No. 14 - 4570N

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 Compensa tion Association (NICA), on June 15,

2015 .

STATEMENT OF THE CASE

On September 16, 2014, Petitioner s , Donta and Kenia Wilson ,

on behalf of and as parents and natural guardians of Dondraya

Wilson ( Dondraya ), a minor, filed a Petition for Benefits

Pursuant t o 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). On September 30,

2014, Petitioners filed a letter with the ClerkÓs Office of DOAH

referencing Dr. William Peters o n as the physician providing

obstetrical services at the birth of Dondraya on December 11 ,

201 1 , at Broward Health Medical Cent er (Broward Health) in Fort

Lauderdale , Florida.

DOAH served NICA with a copy of the Petition on October 7 ,

201 4 . DOAH served a copy of the Petition on William Peterson,

M.D., and Broward Health on November 17, 2014.

A s of the date of this Summary Final Order of Dismissal,

neither Broward H ealth no r Dr. Peterson filed a petition to

intervene into this proceeding.

On June 15 , 201 5 , NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), F lorida Statutes. The motion was served by United

States mail on June 15 , 201 5 .

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

advising Petitioners to show cause in writing no later than

Ju ly 17, 2015, why RespondentÓs Motion for Summary Final Orde r

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

FINDINGS OF FACT

1. Dondraya Wilson was born on December 11, 201 1 , at

Broward Health Medical Center located in Ft. Lauderdale , Florida.

Dondraya weighed 3, 350 grams at birth.

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

to review the medical records for Dondraya, to determine whether

an injury occurred in a hospital due to oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitation i n the immediate post - delivery period. Dr. Willis

described his findings in pertinent part as follows in an

affidavit dated June 2, 2015 :

4. I have reviewed the medical records for

the above individual, pages 1 through 5357.

The mother, Kenia Wilson, was a 29 year old

G7 P3 with a history of macrosomia and

shoulder dystocia with her prior pregnancy.

5. The mother was admitted at 41 weeks for

delivery due to post - dates and suspected

fetal macrosomia. Ultrasound on the day of

delivery gave an estimated f etal weight of 8

lbs. 6 ozs. Her cervix was long and closed.

She was not in labor. The decision was made

to delivery (sic) by Cesarean section rather

than induction of labor due to prior history

of shoulder dystocia.

6. Primary Cesarean section deliver y was

done with a birth weight of 3,350 grams or 7

lbs 6 ozs. Meconium stained amniotic fluid

was present at time of delivery. The baby

was not depressed at birth. Apgar scores

were 8/9. U m bilical cord blood gas was

normal with a pH of 7.29 and a base excess of

only - 4.

7. The baby was taken to the newborn nursery

without apparent problems. Within 24 - hours

of birth, temperature instability and poor

feeding were noted and Neonatology

consultation requested. The baby was

subsequently transferred to Br oward General

Hospital on DOL 2.

8. The baby had a complicated and very long

newborn hospital course. The initial

problems were respiratory distress, poor

muscle tone and poor feeding. Respiratory

distress was managed with hood and nasal

oxygen. Poo r muscle tone was a prominent

feature. Spinal fluid was obtained for

culture. Cultures were no - growth. Feeding

tube was surgically placed at about 3 months

of age due to poor oral feeding.

9. Seizure activity developed at almost

three months of age. EEG was abnormal. Two

MRIÓs of the brain were done and both were

normal.

10. Genetic and metabolic evaluation was

done. Chromosome analysis was normal, but

microarray identified a deletion in

chromosome 16.

11 . In summary, the mother was not in labor

prior to delivery. Delivery was by Primary

Cesarean section. The newborn was not

depressed at birth. Apgar scores were 8/9.

Umbilical cord blood gas was normal with a pH

of 7.29. The baby went from delivery room to

the normal nursery. There were no f indings

to suggest birth hypoxia. Within the first

day of life, neurologic problems were

suspected. MRIÓs of the brain were normal.

Genetic evaluation identified a deletion of

chromosome 16.

1 2 . 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. The child was identified with a

chromosome abnormality, which most likely

explains the neurologic problems.

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

a pediatric neurologist, to examine Dondraya and to review h er

medical records. Dr. Duchowny examined Dondraya on March 18 ,

2015 , and opined in pertinent part as follows in his affidavit

dated June 4, 2015:

20. In summary , DondrayaÓs neurological

examination is consistent with severe global

neurodevelopment delay with a maturation

level of approximating ages 1 - 2 month s .

Dondraya evidences hypotonic quadriparesis

with microcephaly and a cortical visual

impairment. She addi tionally has a

longstanding history of medically resistant

seizures, oromotor dysfunction, pseudobulbar

palsy and a chronic indwelling gastrotomy

tube. There is incidental reactive airway

disease. Dondraya therefore has both a

substantial mental and moto r impairment.

21. Review of medical records reveals that

DondrayaÓs neurological problems are related

to her chromosome disorder and not due to

either mechanical injury or oxygen

deprivation during labor, delivery or the

immediate postnatal period. Dond raya was

born at 41 weeks gestation with a birth

weight of 7 pounds and had a 1 & 5 minute

Apgar scores of 8 & 9.

22. She did not require intubation at birth

and there was no evidence of multiorgan

impairment. Furthermore, two MRI scans of

the brain per formed at ages 5 days and 2

months are within normal limits.

23. I therefore believe that DondrayaÓs

neurological impairment was acquired

prenatally and therefore do not recommend her

for compensation within the NICA program.

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

have been no expert opinions filed t hat 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

babyÓs brain during labor, delivery or the immediate post -

delivery period. Dr. WillisÓ opinion is credited. There are no

expert opinions filed that are contrary to Dr. Duchowny Ós opinion

that although Dondraya has both a substantial mental and motor

impairment, her neurological impairments ar e related to her

chromosome disorder and not due to either mechanical injury or

oxygen deprivation during labor, delivery or the immediate

postnatal period, but were acquired prenatally. Dr. Duchowny Ós

opinion is credited.

CONCLUSIONS OF LAW

5 . The Divi sion 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 f ault, 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 u nder

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 neu rological 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 th e 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 a dministrati ve

l aw j udge 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 i nfant 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

injur y 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 obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 0 . The term "birth - related neurologi cal 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 inf ant 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 substanti ally mentally

and physically impaired.

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

Dondraya did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation occurring during labor, delivery, or

the immediate post - delivery period. Therefore, Dondraya 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. T he Petition filed by Donta and Kenia W i lson , on behalf

of and as parents and n atural guardians of Dondraya W i lson , is

dismissed with prejudice.

2. The final hearing scheduled for August 26, 2015, is

cancelled.

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

Tallahassee, Leon County, Florida.

S

BA RBARA 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 Association

2360 Christopher Place, Suite 1

Tallahassee, Flo rida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1047 5702)

Donta Wilson

Kenia Wilson

5920 Northwest 18th Court

Sunrise, Florida 33313

(Certified Mail No. 7014 2120 0003 1047 5719)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7014 2120 0003 1047 5726)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Talla hassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1047 5733)

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 000 3 1047 5740)

Broward Health Medical Center

Attention: Risk Management

1600 South Andrews Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 7014 2120 0003 1047 5757)

William Peterson, M.D.

1600 South Andrews Avenue, Suite 323

Fort Lauderdale, Florida 33316

(Certified Mail No. 7014 2120 0003 1047 5764)

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 ppeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of renditio n 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).