14-006146N Ashley Suzanne Tilka, Individually And On Behalf Of Addyson Tilka, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Thursday, March 9, 2017.

Summary: Child did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY SUZANNE TILKA,

individually and on behalf of

ADDYSON TILKA, a minor,

Petitioner,

vs. Case No. 14 - 6146N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

a nd

BAYFRONT HEALTH, EDUCATION AND

RESEARCH ORGANIZATION, INC.,

f/k/a BAYFRONT MEDICAL CENTER,

INC.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a n Amended Motion

for Summary Final Order filed by Respondent, Florida Birth -

Related Neurological Injury Compensation Association (NICA), on

August 8, 2016.

STATEMENT OF THE CASE

On December 29, 2014, Petitioner, Ashley Suzanne Tilka,

individually and on b ehalf of Addyson Tilka (Addyson), a minor,

filed a Petition Under Protest Pursuant to Florida Statute

Section 766.301 et seq. with the Division of Administrative

Hearings (DOAH) for a determination of compensability under the

Florida Birth - Related Neurolog ical Injury Compensation Plan

(Plan). On November 9, 2015, Petitioner filed an Amended

Petition Under Protest (Petition).

DOAH served NICA with a copy of the Petition on January 5,

2015. DOAH served Bayfront Medical Center , Inc., with a copy of

the Petit ion on January 6 , 2015. The Petition named Jennifer

Gilby, M.D., as the physician who provided obstetrical services

at the birth of Addyson on June 22, 2012, at Bayfront Medical

Center , Inc., located in St. Petersburg, Florida. Bayfront

Health, Education and Research Organization, Inc. , f/k/a Bayfront

Medical Center , Inc. , filed a Motion to Intervene, which was

granted by Order dated January 27, 2015.

On April 9, 2015, DOAH received a notice from the United

States Postal Service showing that Jennifer Gil by, M.D., had been

served with a copy of the Petition. As of the date of this

Summary Final Order of Dismissal, Jennifer Gilby, M.D., has not

petitioned to intervene into this proceeding.

On February 11, 2016, NICA filed a Response to Petition for

Benefit s, asserting that Addyson did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to determine compensability. The case was scheduled

for final hearin g on August 30, 2016. PetitionerÓs attorney

filed a Motion to Withdraw as Counsel, which was granted by Order

date d May 26, 2016.

On August 8, 2016, NICA filed an Amended Motion for Summary

Final Order. The final hearing was cancelled. IntervenorÓs

re quest for an extension of time in which to respond to NICAÓs

Amended Motion for Summary Final Order was granted. Ultimately,

the parties were ordered to respond to NICAÓs Motion for Summary

Final Order no later than March 7, 2017. On February 28, 2017,

I ntervenor filed a notice that it does not oppose NICAÓs Amended

Motion. As of the date of this Summary Final Order of Dismissal,

Petitioner has not filed a response to NICAÓs Amended Motion.

FINDINGS OF FACT

1. Addyson Tilka was born on June 22, 2012, at Bayfront

Medical Center , Inc., located in St. Petersburg, Florida.

Addyson 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 Addyson. In an affidavit dated

August 3 , 2016, Dr. Willis opined as follows:

In summary, the baby was delivered

prematurely at 34 weeks due to premature

rupture of the membranes. Apgar scores were

5/8. The baby had respiratory distress

syndrome of prematurity. Oxygen and

ventilation support was required for

respiratory distress. Neurologic exam was

appropriate for gestational age. The baby

did not have seizures. No head imaging

studies were done during the newborn hospital

course.

There was no apparent obstetrical event that

resulted in loss of oxygen deprivation or

mechanical trauma to the babyÓs brain during

labor, delivery or the immediate post

delivery period.

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

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

and to re view her medical records. Dr. Sigurdardottir examined

Addyson on January 20, 2016. In an affidavit dated August 5,

2016, Dr. Sigurdardottir summarized her examination of Addyson

and opined as follows:

NEUROLOGICAL EXAM: Mental status: Addyson

is a beau tiful, interactive girl who speaks

in full sentences with minor pronunciation

difficulties. She has no autistic features

and seems age appropriate in all aspects.

Cranial nerves are intact. Pupils are equal

and reactive to light. Visual fields are

full . There is nystagmus, no amblyopia, no

strabismus. Her facial expressions are

symmetric. There is no hearing abnormality

noted. Her motor exam reveals normal muscle

tone, motor strength, symmetric reflexes are

present. Balance and coordination seems

g rossly intact for age.

ASSESSMENT AND PLAN: In summary, here we

have a 3 year 6 month old girl who was born

premature at 34 weeks and needed a neonatal

intensive care unit (NICU) stay due to

respiratory compromise. There are, however,

no clear concerns of her development at this

time. No suggestions of physical impairment.

There is nothing on history or record review

that suggests neurologic injury to the brain

or spinal cord acquired due to oxygen

deprivation or mechanical injury.

Results as to quest ion 1: The patient is

found to have no substantial physical or

mental impairment.

Results as to question 2: there is no

evidence of perinatal neurologic depression

and no evidence of ischemic injury at birth

or in the immediate postnatal period.

Result s as to question 3: We would expect

full life expectancy as no noted

abnormalities are found on exam.

In light of the above - mentioned details, I do

not recommend Addyson to be included in the

Neurologic Injury Compensation Association

program and will be happy to answer

additional questions.

All of my opinions are within a reasonable

degree of medical probability.

4. 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 during labor, delivery or the immediate post -

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

expert opinions filed that a re contrary to Dr. SigurdardottirÓs

opinion that Addyson does not have a substantial physical or

mental impairment. Dr. SigurdardottirÓs opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the p arties 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" relatin g 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 the

petition and to submit relevant written information relatin g 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 neurological 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 assigne d 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 administrative

law judge must make the following determination based up on 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

injury is a birth - related neurological injury

as defined in s. 7 66.303(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 supervi sed 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 ha s 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 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

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Addyson 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 w hich rendered her permanently and

substantially mentally and physically impaired. Therefore,

Addyson 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 Amended Petition filed by

Ashley Tilka, individually and as mother of Addyson Tilka, is

dismissed with prejudice.

DONE AND ORDERED this 9th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administra tive 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

th is 9th day of March , 2017 .

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 Ma il No. 7014 2120 0003 1053 2382)

David S. Nelson, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2399)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Av enue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2405)

Ashley Tilka

4350 40th Street

St. Petersburg, Florida 33714

(Certified Mail No. 7014 2120 0003 1053 2412)

Amie Rice, Investigation Manager

Consumer Serv ices Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 2429)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail St op 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2436)

Jennifer Gilby, M.D.

1600 Dr. Martin Luther King, Jr., Street, North

St. Petersburg, Florida 33704

(Certified Mail No. 7014 2120 0003 1053 2443)

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. Su ch 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 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).