14-005499N Allen Eugene James And December Sabrina James, On Behalf Of And As Parents And Natural Guardians Of Emma Debora James, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 27, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN EUGENE JAMES AND DECEMBER

SABRINA JAMES, on behalf of and

as parents and natural guardians

of EMMA DEBORA JAMES, a minor,

Petitioners,

vs. Case No. 14 - 5499N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPE NSATION

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

Neu rological Injury Compensation Association (NICA), on July 16,

2015.

STATEMENT OF THE CASE

On November 18, 2014, Petitioners, Allen Eugene James and

December Sabrina James, on behalf of and as parents and natural

guardians of Emma Debora James (Emma), a mi nor, 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 Pla n (Plan). The

Petition named Shannon Loe, M.D., as the physician providing

obstetrical services at the birth of Emma on July 23, 2011, at

Orange Park Medical Center located in Orange Park, Florida.

DOAH served NICA with a copy of the Petition on November 20,

201 4 . On December 1, 2014, DOAH received a return receipt from

the United States Postal Service showing that Orange Park Medical

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

Shanan Michelle Loe , M.D., with a copy of the Petition on

December 19, 2014.

On July 16, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. An Order to Show Cause was ente red

on July 29, 2015, advising Petitioners to show cause in writing

no later than August 13, 2015, why RespondentÓs Motion for

Summary Final Order should not be granted. To date, no response

h as been filed by Petitioners.

As of the date of this Summary F inal Order of Dismissal, no

petition to intervene h as been filed by Dr. Loe or Orange Park

Medical Center.

FINDINGS OF FACT

1. Emma Debora James was born on July 23, 2011, at Orange

Park Medical Center located in Orange Park, Florida. Emma

weighed 3 ,894 grams at birth.

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

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

dated April 30, 2015, Dr. Willis opined in pertinent part as

follows:

Spontaneous vaginal delivery was complicated

by a shoulder dystocia. Time from delivery

of the head until completion of the delivery

was two minutes. Birth weight was 3,894

grams or 8 lbs 9 ozÓs .

Apgar scores were 6/8. The baby was pale and

responsive at birth. Only stimulation was

required for resuscitation. The babyÓs right

arm was limp. Mild nasal flaring was

present. The baby was taken to the NICU for

management of mild respiratory distress.

Respiratory distress resolved within 15

minutes of birth. Brachial plexus palsy was

diagnosed. The baby was treated with

antibiotics for two days due to maternal

chorioamnionitis. Antibiotics were

discontinued and the baby discharged home two

days after birth.

Summary: vaginal delivery at 39 weeks

gestational age was complicated by a shoulder

dy stocia and resulting brachial plexus

injury. Newborn hospital course was

otherwise benign.

This child suffered a brachial plexus injury

at delivery. However, there was no apparent

obstetrical event that resulted in loss of

oxygen or mechanical trauma to the babyÓs

brain or spinal cord during labor, delivery,

or the immediate post delivery period.

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

July 13, 2015, that Emma suffered a brachial plexus injury at

delivery and that there was no appar ent obstetrical event that

resulted in loss of oxygen or mechanical trauma to the babyÓs

brain or spinal cord during labor, delivery or the immediate post

delivery period.

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

a pediatric neurologist, to examine Emma and to review her

medical records. Dr. Duchowny examined Emma on April 2 2 , 2015.

In a medical report regarding his independent medical examination

of Emma, Dr. Duchowny opined as follows:

IN SUMMARY, EmmaÓs neurological examination

revea ls findings consistent with a right

ErbÓs palsy involving the C 5 and C6

dermatomal segments. There is no involvement

of the left upper extremit y or the lower

extremities and no other significant

neurological findings. Her mental abilities

are age - appropr iate.

* * *

The findings of todayÓs evaluation together

with the medical record review do not reveal

a permanent or substantial mental or physical

impairment due to oxygen deprivation or

mechanical injury to the brain or spinal

cord. EmmaÓs neurological injury involves

cervical roots outside the spinal cord. I

therefore do not believe that Emma should be

considered for compensation within the NICA

program.

5 . In an affidavit dated July 14, 2015, Dr. Duchowny

reaffirmed his opinion that his medical exa mination of Emma

together with the medical record review does not reveal a

permanent or substantial mental or physical impairment due to

oxygen deprivation or mechanical injury to the brain or spinal

cord.

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 obstetrical

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

baby's brain or spinal cord during labor, delivery, or the

imm ediate post delivery period. Dr. WillisÓ opinion is credited.

There are no contrary expert opinions filed that are contrary to

Dr. DuchownyÓs opinion that Emma does not have a permanent or

substantial mental or physical impairment due to oxygen

deprivati on or mechanical injury to the brain or spinal cord.

Dr. DuchownyÓs 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 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.

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 w hom 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 12 0, Florida Statutes.

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

1 1 . 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 -

rel ated 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

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a partic ipating 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 res uscitation 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 serv ices

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 2 . 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 co rd 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, deliv ery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

1 3 . The evidence, which is not refuted, established that

Emma did not sustain an injury to the brain or spinal cord caused

by oxygen deprivation or mechanical injury in the course of

labor, delivery, or resuscitation in the immediate post - delivery

period in a hospital. Therefore, Emma is not eligible for

benefits under the Plan.

CONCLUSION

Ba sed upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Allen Eugene James

and December Sabrina James, on behalf of Emma Debora James, is

dismissed with prejudice. The hearing scheduled for

September 16, 20 15, is cancelled.

DONE AND ORDERED this 27th 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 P arkway

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 27th 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 3058)

Allen Eugene James

December Sabrina James

7663 Pla ntation Bay Drive East

Jacksonville, Florida 32244

(Certified Mail No. 7014 2120 0000 0359 3065)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7014 2120 0000 0359 3072)

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 0000 0359 3089)

Elizabeth Dudek, Secretary

Health Quality Assurance

A gency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0000 0359 3096)

Shanan Michelle Loe, M.D.

St. VincentÓs OB/GYN

Roger Main Building

4203 Belfort Road, Suite 204

Jacksonville, Flor ida 32216

(Certified Mail No. 7014 2120 0000 0359 3102)

Orange Park Medical Center

Attention: Risk Management

2001 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7014 2120 0000 0359 3119)

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

commenc ed 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).