14-004571N Raymond D. Light And Jessica Light, Individually And On Behalf Of Owen Light, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Wednesday, August 19, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND D. LIGHT AND JESSICA

LIGHT, individually and on

behalf of OWEN LIGHT, a minor,

Petitioners,

vs. Case No. 14 - 4571N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Re spondent,

and

ADVENTIST HEALTH SYSTEM/SUNBELT,

INC., d/b/a FLORIDA HOSPITAL

ALTAMONTE AND THOMAS PAUL

ENYART, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for c onsideration upon a Renewed Motion

for Summary Final Order filed by Respondent, Florida Birth -

Related Neurological Injury Compensation Association (NICA), on

August 3, 2015.

STATEMENT OF THE CASE

On September 25, 2014, Petitioners, Raymond D. and Jessica

Light, individually and on behalf of Owen Light (Owen), a minor,

filed a Petition Under Protest Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under t he Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Thomas

Enyart, M.D., as the physician providing obstetrical services at

the birth of Owen on November 26, 2013, at Florida Hospital

Altamonte in Altamonte Springs, F lorida.

DOAH served NICA and Florida Hospital Altamonte with a copy

of the Petition on October 7, 2014. DOAH served a copy of the

Petition on Thomas Enyart, M.D., on October 6, 2014.

On October 16, 2014, Adventist Health Systems/Sunbelt Inc.,

d/b/a Florida Hospital Altamonte and Thomas Enyart, M.D. , filed a

Petition to Intervene which was granted by Order dated

October 24, 2014.

On January 21, 2015, NICA filed a Motion for Summary Final

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

neu rological injury" as that term is defined in section

766.302(2), Florida Statutes. Intervenors filed a Response in

opposition. The Motion for Summary Final Order was denied without

prejudice by Order dated February 6, 2015.

On August 3, 2015, NICA filed a Renewed Motion for Summary

Final Order. On August 12, 2015, Intervenors filed a Notice of

Non - opposition to NICAÓs Renewed Motion for Summary Final Order.

No response to the Motion was filed by Petitioners.

FINDINGS OF FACT

1. Owen Light was born on November 26, 2013, at Florida

Hospital Altamonte located in Altamonte Springs, Florida. Owen

weighed 3,980 grams at birth.

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

to review the medical records for Owen, to determine whether an

injur y occurred in a hospital due to oxygen deprivation or

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

resuscitation in the immediate post - delivery period.

3. Dr. Willis described his findings in pertinent part as

follows in a medical re port dated November 3, 2014:

In summary, there was no obvious distress

during labor or delivery. The newborn was not

depressed. Apgar scores were 9/9. The

initial exam in the nursery noted some

decreased muscle tone, but no acute distress.

The baby was a pparently doing well until

about 12 - hours after birth, when seizure

activity was noted. Imaging studies showed

venous thrombosis in the dural sinus.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓ s brain during labor,

delivery or the immediate post - delivery

period. The baby suffered brain injury, as

indicated by the abnormal EEG and imaging

studies of a venous thrombosis in the dural

sinus. However, the brain injury does not

appear to be related to either mechanical

trauma or hypoxic injury during labor,

delivery or the immediate post - delivery

period.

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

January 20, 2015, 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.

5. NICA retained Laufey Y. Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to examine Owen

and to review h is medical recor ds. Dr. Sigurdardottir examined

Owen on July 22, 2015, and opined in pertinent part as follows in

an affidavit dated August 3, 2015:

5. The opinions expressed in my Report are

accurate and my opinions are as follows:

A. The patient is found to have a p ermanent

substantial mental and physical impairment

and is overall functioning at approximately a

7 - 9 month level at the biologic age of 19 - 20

months. He is noted to have hypotonia,

d elayed gross and fine motor skills, a past

history of epilepsy, delayed visual

maturation, although no periods of stagnation

or developmental regression have been noted.

B. There is little evidence from the records

that we have reviewed to suggest a perinatal

ischemic or mechanical injury as the cause

for his delays. Prenat al care was complete

and documentation during the vaginal delivery

was continuous revealing only 2 brief periods

of mild fetal heart rate deceleration. Upon

delivery, there was no indication of an acute

ischemic event with normal Apgar scores of 9

after 1 minute and 9 after 5 minutes. There

is documentation from a consulting genetic i st

that mom described possible prenatal seizure -

like events, alth ough a clear description was

not given. The patient certainly had an

abnormal immature EEG and seizure activi ty

that continued for a few weeks. MRI findings

have not been consistent with a profound

ischemic event, in fact been completely

normal. At this time, it is more likely that

Owen has delays in his gross and fine motor

skills as well as delayed cognitive

development due to a congenital disorder that

seems non - progressive in nature. He seems to

be receiving excellent care provided to him

by his parents and caretakers.

C. At this time, it is difficult to measure

OwenÓs global cognition but based on acquir ed

skills he functions at a 7 - 8 month level at

the age of 19 months. This would be

considered a developmental quotient of 40 - 45.

His life expectancy is not felt to be limited

if he shows ongoing developmental progress.

He is likely to need lifelong care.

6. I therefore am not recommending Owen to

be included into the NICA program.

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 no apparent obstetric al

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. SigurdardottirÓs

opinion that although Owen has both a substantial mental and

physical impairment, it is more likely that his neurological

impairments are due to a congenital disorder and not due to

either mechanical injury or oxygen deprivation during labor,

delivery or t he immediate post - delivery period.

Dr. SigurdardottirÓs 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, irrespective 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 in jured 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." § 766.30 5(4), Fla. Stat.

10. 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 clai m 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 S tatutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

11. 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 neurolo gical 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 per manently 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 participating phys ician 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 i n 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 de livered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

12. 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 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

resu scitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Owen did not sustain an injury to the brain o r spinal cord caused

by oxygen deprivation occurring during labor, delivery, or the

immediate post - delivery period. Therefore, Owen 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. The Petition Under Protest filed by Raymond D . and

Jessica Light, individually and on behalf of Owen Light, is

dismissed with prejudice.

2. The final hearing scheduled for September 29, 2015, is

cancelled.

DONE AND ORDERED this 1 9th day of August , 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 19th day of August , 2015 .

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 2120 0000 0359 2921)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2938)

Travase Lloyd Erickson, Esquire

Saalfield, Shad, Stokes, Inclan,

Stoudemire and Stone, P.A.

245 Riverside Avenue , Suite 400

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7014 212 0 0000 0359 2945)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2952)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of He alth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0000 0359 2969)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florid a 32308

(Certified Mail No. 7014 2120 0000 0359 2976)

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. Revie w 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 t he 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).