14-005299N Christina Dunbar And Curtis Scott, Individually And On Behalf Of Christian Scott, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Thursday, March 19, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINA DUNBAR AND CURTIS

SCOTT, Individually and on

behalf of CHRISTIAN SCOTT, a

minor,

Petitioner s ,

vs. Case No. 14 - 5299N

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 Associat ion (NICA), on

January 8, 2015.

STATEMENT OF THE CASE

On November 10 , 2014, Petitioners, Christina Dunbar and

Curtis Scott , individually and on behalf of Christian Scott

(Christian ), a minor, filed a Petition Under Protest Pursuant to

Florida Statute Sect ion 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 Mario A.

Gomez , M.D., as the physicia n providing obstetrical services at

the birth of Christian on August 2, 201 1 , at Homestead Hospital

located in Homestead , Florida.

DOAH served NICA with a cop y of the Petition on November 14 ,

2014. DOAH served a copy of the Petition on Mario A. Gomez,

M.D ., on November 20, 2014. On December 30, 2014, DOAH received

the envelope from the United States Postal Service in which the

Petition had been mailed to Homestead Hospital marked ÐReturn to

Sender, Unclaimed, Unable to Forward.Ñ A copy of the Petition

wa s again mailed to Homestead Hospital and it was again returned

to DOAH marked ÐReturn to Sender, Unclaimed, Unable to ForwardÑ

on February 5, 2015. A copy of the Petition was again mailed to

Homestead Hospital and was served on February 9, 2015.

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

neither Mario A. Gomez, M.D., nor Homestead Hospital has

petitioned to intervene in this proceeding.

On January 8, 2015, NICA filed a Motion for Summary Fi nal

Order, asserting that Christian did not sus tain 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 under protest and asserts that the parents are not

claimants. Referencing the Petition and the affidavit a ttached

to the Motion for Summary Final Order, NICA asserts that there

are no genuine issues of material fact regarding the

compensability of this claim. No objection has been filed to the

Motion.

FINDINGS OF FACT

1. Christian Scott was born on Au gust 2 , 201 1 , at Homestead

Hospital located in Homestead , Florida.

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

to revie w the medical records for C h ristian . In a report dated

December 1 9 , 2014, Dr. Willis described his findings as follows :

The mother was admitted to the hospital at 40

5/7 weeks in labor . The fetal heart rate

(FHR) tracing during labor was reviewed.

There was a normal baseline FHR on admission

of 150 bpm. The pattern was reactive and did

not suggest any fetal distress. F etal

tachycardia developed shortly after hospital

admission with a FHR of 160 bpm. The pattern

continued to be reactive. A brief episode of

later FHR decelerations occurred about two

hours prior to birth. The baseline FHR was

180 bpm when the monitor wa s removed about

twenty - five minutes before delivery.

C e sarean section delivery was done for a non -

reassuring FHR pattern, which appears to be

primarily fetal tachycardia. Amniotic fluid

was clear when membranes were ruptured at

time of delivery. Birth w eight was 3,475

grams or 7 lbs 10 ozÓs. Delivery was

described as uncomplicated.

The baby was not depressed at birth . Apgar

scores were 9/9. No resuscitation was

required. The baby was noted to have a fever

and apparently the mother was also febrile.

Antibiotics were started. The baby was

transferred to another facility due to

persistent vomiting. No medical records were

available from the second hospital.

The baby was delivered at Homestead Hospital .

No dictated admission or discharge note from

the nursery was available for review.

DoctorÓs hand written notes were included in

the medical records. Some of these notes

were difficult to read. Medical records for

a subsequent twin pregnancy in 2014 for the

mother, Christina Dunbar, were also included.

In summary: the mother was admitted to the

hospital at term in labor. Cesarean section

was done for a non - reassuring FHR pattern,

which was primarily fetal tachycardia. The

baby was not depressed at birth and required

no resuscitation. Apgar scores w ere 9/9.

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. In an affidavit dated January 7, 2015, Dr. Willis

confirmed his opinion as stated in his medical report and opined

as follows:

5. It is my opinion that the mother was

admitted to the hospital at term in labor.

Cesarean section was done for a non -

reassuring FHR pattern, which was primarily

fetal tachycardia. The baby was not

depressed at birth and required no

resuscitation. Apgar scores were 9/9.

6. As such, it is my opinion 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.

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 obstetrical event that

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

brain during labor , delivery or the immediate post - delivery

period , and Petitioners have filed their Petition under Protest,

stating that they are not claimants. Dr. WillisÓ opinion is

credited.

CONCLUSIONS OF LAW

5. The Di vision 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 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 th e

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 n eurological 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.

9. In discharging this responsibility, the administra tive

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 that the

inj ury 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; o r 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 neurolo gical 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 i nfant 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 post delivery

period in a hospital, which renders the

infant permanently and substa ntially mentally

and physically impaired.

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

C h ristian did not sustain an injury to the brain caused by oxygen

deprivation or mechanical injury in the course of labor , delivery

or the immediate post - delivery period . Therefore, Christian is

not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Christina Dunbar

and Curtis Scott , individually and o n behalf of Christian Scott ,

a minor, is dismissed with prejudice.

DONE AND ORDERED this 19th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrat ive 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 March , 2015 .

COPIES F URNISHED:

(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. 7013 2630 0000 4177 1534)

Mar ia D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7013 2630 0000 4177 1541)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Flo rida 33324

(eServed)

(Certified Mail No. 7013 2630 0000 4177 1558)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4177 1565 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4177 1572)

Homestead Hospital

Attention: Risk Management

975 Baptist Way

Homestead, Florida 33033

(Certified Mail No. 7014 2120 0003 1053 1262)

Mario A. Gomez, M.D.

925 Northeast 30th Terrace, Suite 300

Homestead, Florida 33033

(Certified Mail No. 7014 2120 0003 1053 1279)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review o f 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

commence d 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 t he 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).