15-000687N Emily Flint And Daniel S. Flint, Sr., Individually And As Parents And Natural Guardians Of Daniel Flint, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 18, 2016.

Summary: Child does not have permanent and substantial mental or physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMILY FLINT and DANIEL S. FLINT,

SR., individually and as parents

and natural guardians of DANIEL

FLINT, a minor child,

Petitioners,

vs. Case No. 15 - 0687N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

HERNANDO HMA, INC., d/b/a

BAYFRONT HEALTH SPRING HILL AND

C. MICHELLE HALE, C.N.M.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on fo r consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Association (NICA), on February 5, 2016.

STATEMENT OF THE CASE

On February 5, 2015, Petitioners, Emily Flint and Daniel S.

Flint, Sr., on behalf o f and as parents and natural guardians of

Daniel Flint (Daniel), a minor, filed an Involuntary Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition), with the Division of Administrative Hearings (DOAH).

The Petition alleged that Daniel suffered brain damage and related

neurological disorders as a result of a birth - related neurological

injury.

The Petition named Mohammed A. Tabbaa, M.D., as the physician

providing obstetric services at the birth of Daniel at Bayfront

Health Sp ring Hill , f/k/a Spring Hill Regional Hospital in Spring

Hill, Florida. The Petition also named Samir Shakfeh, M.D., as a

physician potentially providing obstetrical services to Emily

Flint, and C. Michelle Hale, CNM, as a certified nurse midwife who

was present at Daniel ' s birth.

DOAH served Bayfront Health Spring Hill with a copy of the

Petition on February 17, 2015. DOAH served NICA and Mohammed A.

Tabbaa, M.D., with a copy of the Petition on February 18, 2015.

NICA served C. Michelle Hale, CNM, with a copy of the Petition on

March 4, 2015. DOAH served Samir Mohammed Shakfeh, M.D., with a

copy of the Petition on March 23, 2015.

On April 15, 2015, Hernando HMA, Inc., d/b/a Bayfront Health

Spring Hill, filed a Motion to Intervene, which was granted by

O rder dated April 24, 2015. On June 18, 2015, C. Michelle Hale,

CNM, filed a Motion to Intervene, which was granted by Order dated

June 2 6 , 2015.

As of this date, neither Dr. Shakfeh nor Dr. Tabbaa, has

petitioned to intervene in this proceeding.

On June 3, 2015, NICA filed a response to the Petition,

giving notice that the injury does not " meet the definition of a

' birth - related neurological injury ' as defined in section

766.302(2), Florida Statutes, which specifically requires that the

injury render ' the infant permanently and substantially mentally

and physically impaired. '" NICA requested that a hearing be

scheduled to resolve whether the claim was compensable.

A final hearing was scheduled for March 8 and 9, 2016. On

February 5, 2016, NICA filed a M otion for Summary Final Order,

asserting that Daniel did not sustain a " birth - related

neurological injury " as that term is defined in section

766.302(2), Florida Statutes. The Motion was served on all

counsel of record electronically. In the Motion, NICA advised

that neither Petitioners nor Intervenor C. Michelle Hale, CNM,

opposed the Motion. To date, Intervenor Bayfront Health Spring

Hill has not filed a response to the Motion.

FINDINGS OF FACT

1. Daniel Flint was born on May 3, 2014, at Bayfront Heal th

Spring Hill in Spring Hill, Florida. Daniel weighed in excess of

2,500 grams at birth.

2. NICA retained Donald C. Willis, M.D. (Dr. Willis), to

review Daniel ' s medical records. In a medical report dated

June 2, 2015, Dr. Willis made the following fi ndings and expressed

the following opinion:

In summary, fetal bradycardia developed during

labor and required emergency Cesarean

delivery. The baby was severely depressed at

birth with Apgar scores of 0 at one and five

minutes. A heart rate was not pres ent until

after 10 minutes of vigorous resuscitation.

The initial blood gas was consistent with

acidosis. The base was - 22. Seizures

occurred within the first hour of life. The

baby was diagnosed with HIE and managed with

whole body cooling.

The baby w as found to have a single mutation

for the Prothrombin II mutation. I do not

believe this was a factor in the oxygen

deprivation at birth.

There was an apparent obstetrical event that

resulted in loss of oxygen to the baby ' s brain

during labor, delivery and continuing into the

immediate post delivery period. Seizure

activity shortly after birth would be

consistent with brain injury as a result of

the oxygen deprivation. I am unable to

comment about the severity of the brain

injury.

3. Dr. Willis ' opin ion that there was an apparent

obstetrical event that resulted in loss of oxygen to the baby ' s

brain during labor, delivery and continuing into the immediate

post - delivery period, and that seizure activity shortly after

birth would be consistent with brain injury as a result of oxygen

deprivation is credited.

4. Respondent retained Michael Duchowny, M.D.

(Dr. Duchowny), a pediatric neurologist, to evaluate Daniel.

Dr. Duchowny reviewed D a niel ' s medical records and performed an

independent medical examinat ion on him on May 13, 2015.

Dr. Duchowny made the following findings and summarized his

evaluation as follows:

In SUMMARY Daniel ' s neurological examination

reveals very mild plantar - grade foot

positioning without corroborating evidence of

increased musc le tone. The elevated (3)

knee jerks are consistent with an extremely

mild spastic diparesis. He additionally

evidences borderline microcephaly. I was

surprised by this finding as his head

appeared normal to inspection; I re - measured

the head circumfer ence several times to

confirm. D an iel ' s motor impairment is judged

to be mild and I did not find evidence of

many [sic] mental impairment.

A review of medical records sent on

April 16 th reveals that following Daniel ' s

birth at Bayfront Health at Springhi ll

Hospital at 38 4/7 weeks gestation he was

transferred to All Children ' s Hospital.

Because of concern over low Apgar scores of

0, 0, 2, 4 and 5 at 1, 5, 10, 15 and 20

minutes, lethargy and tremors, he was placed

in a hypothermic protpocol at 1 hour of l ife

which was formally implemented upon arrival

at All Children ' s Hospital. Daniel underwent

total body cooling for 3 days. He developed

seizures within 35 minutes of delivery and

was treated with phenobarbital. Dopamine and

hydrocortisone were administ ered. His

nursery course was complicated by MRSA

colonization which stabilized. He was found

to be heterozygous with a prothrombin gene

mutation.

An MRI scan of the brain obtained on May 12

revealed a questionable area of thrombosis

but a repeat MRI sca n on May 22 was

significant only for enlarged extraaxial

spaces.

In summary, Daniel has done remarkably well

and now has only a very mild motor impairment

affecting his gait and to a lesser degree his

oroalimentary coordination. His head growth

is border line. I believe the hypothermia

protocol played a role in improving his long -

term prognosis. Daniel does not have either

a substantial mental or motor impairment and

I am not recommending him for consideration

within the NICA Program.

5. Dr. Duchowny w as deposed on January 15, 2015, wherein he

testified in pertinent part as follows:

Q. Okay. All right. And these records

discuss and describe certain issues, and I

know you said you read the mom ' s deposition.

She raised some issues about the child ' s

c oordination running or about some of the

swallowing issues.

Is it fair to say that any issue that ' s been

raised, either by Mom in her deposition or by

any of the health care providers in the

records that you reviewed or any issues that

you noted in your r eport, are all related to

this developmentally based disorder that was

established in utero?

A. That ' s what I believe, yes.

Q. And is that your opinion within a

reasonable degree of medical probability?

A. It is.

* * *

Q. Doctor, are you famili ar with the term or

definition of birth - related neurological

injury as it ' s used with Chapter 766 of the

Florida Statutes?

A. I believe so, yes.

Q. Okay. So I want to ask you then: Do you

have an opinion whether Daniel is permanently

and substantiall y mentally and physically

impaired?

MS. DAWSON : Form

THE WITNESS : I do

BY MR. GRACE :

Q. What ' s that opinion Doctor?

A. I do not believe that he has a

substantial mental or physical impairment.

Q. And just in summary fashion Î I ' m not

asking for yo u to re - testify about all your

prior opinions. But in summary fashion, tell

us the basis for that opinion and where you

gathered your support.

A. It ' s because I believe that Daniel ' s

motor dysfunction is mild and primarily is

associated with incoordinat ion which will

improve over time. And I also believe that

his delayed expressive language development

will also improve over time. So they ' re mild

now and will continue to improve. Therefore,

neither domain represents a substantial

impairment.

Q. Is t hat opinion given within a reasonable

degree of medical probability?

A. Yes.

Q. Doctor, in response to Mr. Valenzuela ' s

question, you briefly touched on MRI scans

that were done. Did you review the actual

films, or did you rely on the reports?

A. I can ' t recall. I have not reviewed them

recently. If I had to guess, I would say

that I relied on the reports at that time,

but I honestly can ' t recall.

Q. Okay. There were two scans done. And

with regard to those scans , y ou indicated in

your report o n page 5 there was a

questionable area of thrombosis?

A. Yes, that was on the first one I believe.

Q. All right, what is thrombosis?

A. Blood clot.

Q. And are you able to tell us what you

attribute that clot to?

A. I don ' t know.

Q. Then there w as a repeat MRI scan done on

May 22 nd , correct?

A. Yes sir.

Q. All right. And what were the findings on

that?

A. That showed no abnormalities in the

brain, no evidence of thrombosis, and an

extra - axial collection of fluid, meaning a

collection of fl uid outside the brain, not

within the brain substance itself.

Q. With regard to your opinion that Daniel

has not suffered a birth - related neurological

injury, did you rely on these MRI ' s to

formulate that opinion?

A. Yes, that was one component.

Q. Okay. And how did you rely on these?

What ' s the significance?

A. Well, I don ' t think it ' s -- that you can

rely on any one aspect. What I did was

factor the findings on the MRI with the

history and with my findings on physical

examination as well as th e history of

Daniel ' s development. Putting all of that

information together, in my opinion, yields a

consistent pattern and diagnosis of

developmental delay.

I thought Daniel ' s examination revealed

developmental findings, as I ' ve stated

previously. And the fact that his follow - up

MRI showed no evidence of a structural brain

injury, in my opinion, supported that

diagnosis.

6. Dr. Willis is of the opinion that there was an apparent

obstetrical event that resulted in loss of oxygen to the baby ' s

brain du ring labor, delivery and continuing into the post -

delivery period, and that seizure activity shortly after birth is

consistent with brain injury as the result of oxygen deprivation .

However, in order for a birth - related injury to be compensable

under the P lan, the injury must meet the definition of a birth -

related neurological injury and the injury must have caused both

permanent and substantial mental and physical impairment.

7. Dr. Duchowny ' s opinion that Daniel does not have a

substantial mental or phys ical impairment is credited.

8. 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. Duchowny that Daniel does not have a substantial

mental and physical impairment. While Daniel has some deficits,

these deficits do not render him permanently and substantially

mentally and physically impaired.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceed ing.

§§ 766.301 - 766.316, Fla. Stat. (2014).

10. The Plan was established by the Legislature " to provide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitati on. " § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which 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 . This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormali ty. (emphasis added).

11. 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. The Florida

Birth - Related Neurological Injury Compensation Association, 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 submit relevant written information r elating to the issue of

whether the injury is a birth - related neurological injury. "

§ 766.305(4), Fla. Stat.

12. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

compensation to the c laimant, 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.

13. In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

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 defin ed in s.

766.302(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 hospi tal 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.

14. In the instant case, Petitioners filed a claim alleging

that Daniel did sustain a birth - related neurological injury that

is compensable under the NICA plan. As the proponent of the issue

of compensability, the burden of proof is upon Petitioner.

§ 766.309(1)(a), Fla. Stat. See also Balino v. Dep ' t of Health &

Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)( " [T]he

burden of proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tribunal. " ).

15. While Dr. Willis established that there was an apparent

obstetrical event which res ulted in loss of oxygen to Daniel ' s

brain during the delivery process and continuing into the

immediate resuscitation period that resulted in brain injury, the

remaining issue to be determined is whether the injury resulted in

a permanent and substantial m ental impairment and a permanent and

substantial physical impairment, inasmuch as both are required to

establish compensability. Fla. Birth - Related Neurological Injury

Comp. Ass ' n v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla.

1997).

16. The eviden ce, which is not refuted, established that

Daniel does not have a permanent and substantial mental or

physical impairment. Thus, Daniel is not entitled to benefits

under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed by Emily Flint and Daniel S.

Flint, Sr., on behalf of and as parents and natural guardians of

Daniel Flint, a minor child, is dismissed with prejudice, and the

final hearing scheduled for March 8 and 9, 2016, is can celled.

DONE AND ORDERED this 18th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 18th day of February , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Exe cutive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2736)

Henry Valenzuela, Esquire

Valenzuela Law Firm P.A.

100 North Tampa Street , Suite 2350

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2743)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 1200 000 2 3336 2750)

Mindy McLaughlin, Esquire

Burton, Beytin & McLaughlin

201 North Franklin Street, Suite 2900

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2767)

Denise L. Dawson, Esquire

Hall Booth Smith, PC

Second Floor, Suite H

92 50 Alternate A1A

North Palm Beach, Florida 33403

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2620)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certi fied Mail No. 7014 1200 0002 3336 2644)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2651)

C. Michell e Hale, CNM

All Women ' s Midwifery and Health Care

4065 Mariner Boulevard

Spring Hill, Florida 34609

(Certified Mail No. 7014 1200 0002 3336 2668)

Mohammed A. Tabbaa, M.D.

11373 Cortez Boulevard, Suite 408

Spring Hill, Florida 34613

(Certified Mail No. 7 014 1200 0002 3336 2675)

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 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).