15-001100N Sarah W. Kitchen (Mother) And Steven Kitchen (Father), On Behalf Of And As Natural Guardians Of Madeline Elizabeth Kitchen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 18, 2016.

Summary: Child is not permanently and substantially mentally or physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH W. KITCHEN (MOTHER) and

STEVEN KITCHEN (FATHER), on

behalf of and as natural

guardians of MADELINE ELIZABETH

KITCHEN, a minor,

Petitioners,

vs. Case No. 15 - 1100N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

SHARON N JONES, CNM, ARNP ; AND

NORTH FLORIDA OB/GYN, LLC,

Intervenors.

_______________________________/

FINAL ORDER

Pursuant to an Order dated February 12, 2016, the parti es

were granted leave to submit a stipulated factual record and

written argument in lieu of a contested hearing in this case.

The stipulated record was filed on April 8, 2016. The parties

were granted 15 days from the date the stipulated record was

filed to submit their proposed final orders or written arguments.

The parties timely filed their proposed final order or written

memorandum in support on April 19, 2016, which have been duly

considered in the preparation of this Final Order.

APPEARANCES

F or Petitioners: Rodney Stuart Margol, Esquire

Margol & Margol, P.A.

2029 North 3rd Street

Jacksonville Beach, Florida 32250

For Respondent: M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue, Suite 301

Jacksonville, Florida 32256

For Intervenor s S haro n n Jones, CNM, ARNP ; and North Florida

OB/GYN , LLC:

Richard E. Ramsey, Es quire

Wicker, Smith, O'Hara,

McCoy and Ford, P.A.

50 North Laura Street , Suite 2700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this case is whether Madeline Elizabeth Kitchen

suffered an injury for which compensation should be awarded under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On February 24, 201 5 , Sarah W. Kitchen and Steven Kitchen, o n

behalf of and as natural guardians of Madeline Elizabeth Kitchen

(Madeline), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (Petition), with the

Division of Administrative Hearings (DOAH). The Petition alleged

that Madeline suffered a birth - related neurological brain and/or

spinal cord injury.

The Petition named Robert Roland Powers, D.O. ;

Eric Edelenbos, D.O. ; and R. Sharonn Jones, CNM, ARNP, as the

medical providers providing obstetric services, and alleged t hat

Madeline was born at Orange Park Medical Center , which is located

in Orange Park, Florida, on March 9, 2013.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) on March 4, 2015. DOAH served

Robert Roland Powers, D.O. ; Eric J. Edelenbos, D.O. ; and

R. Sharonn Jones, CNM, ARNP, with a copy of the Petition on

March 5, 2015.

On March 12, 2015, Orange Park Medical Center filed a

Petition to Intervene, which was granted by Order dated March 20,

2015. On March 23, 201 5, R. Sharonn Jones, CNM, ARNP ; and North

Florida OB/GYN, LLC, filed a Petition for Leave to Intervene,

which was granted by Order dated March 31, 2015.

On August 19, 2015, NICA filed a response to the Petition,

giving notice that the alleged injury did n ot "meet the definition

of a 'birth - related neurological injury' as defined in section

766.302(2), Florida Statutes, which requires that an injury to the

brain or spinal cord caused by oxygen deprivation or mechanical

injury occurring in the course of labo r, delivery or resuscitation

in the immediate post delivery period, and 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 compen sable.

A final hearing was scheduled for March 3, 201 6 . On

February 11, 201 6 , the parties filed a Joint Motion to Submit

Stipulated Factual Record in Lieu of a Contested Hearing. On

February 12, 201 6 , an Order was entered granting the parties leave

to s ubmit a stipulated record in lieu of a live administrative

hearing.

On March 25, 2016, Orange Park Medical Center filed a Notice

of Withdrawal, withdrawing as an Intervenor in this case.

On April 8, 2016, the parties filed a Stipulated Record,

consisting of printed copies of Joint Exhibits A through AA.

Included in these exhibits is the deposition testimony of three

witnesses: Sarah Kitchen, Mary Helen Axman, and Dennis Martin

Axman, Sr.

On April 18, 2016, Petitioners timely filed their Memorandum

in Sup port of Benefits. On April 19, 2016, Respondent timely

filed its Proposed Final Order. On April 19, 2016, Intervenors

filed their Notice of Joinder in PetitionersÓ Memorandum in

Support. These post - hearing submissions have been carefully

considered in t he drafting of this Final Order.

FINDINGS OF FACT

1. Sarah W. Kitchen and Steven Kitchen are the natural

parents of Madeline E lizabeth Kitchen (Madeline), a minor.

2. Madeline was born a live infant at Orange Park Medical

Center, a licensed hospital in Orange Park, Florida, on March 9,

2013.

3. Obstetrical services at the time of MadelineÓs birth w ere

provided by Sharonn J ones , CNM, ARNP ; and her employer, North

Florida OB/GYN, LLC. At all material times, Nurse J ones and North

Florida OB/GYN were participants in the Florida Birth - Related

Neurological Compensation Plan. NICA Ós notice is not at issue as

to Nurse Jones or North Florida OB/GYN in this proceeding.

4. Madeline weighed in excess of 2,500 grams at birth.

5. Petitioners and Interveno rs contend that Madeline

suffered a birth - related neurological injury , and Petitioners seek

compensation under the NICA Plan. Petitioners and Intervenors

take the position that MadelineÓs brain injury was caused by

oxygen deprivation or mechanical injury occurring in the course of

labor, delivery or resuscitation in the immediate post - delivery

period, which rendered Madeline permanently and substantially

impaired. Respondent contends that MadelineÓs injury does not

meet the definition of a birth - related n eurological injury as

defined in section 766.302(2), Florida Statutes.

6. Petitioner Sarah Kitchen was admitted to Orange Park

Medical Center on March 9, 2013. Her membranes were artificially

ruptured at 12:48 in the afternoon, and her amniotic fluid wa s

clear. There were some fetal heart decelerations during labor.

After Mrs. Kitchen pushed for over an hour, vacuum extraction with

two pulls was used to assist vaginal delivery. There was meconium

stained amniotic fluid requiring intubation and suctioni ng before

first cry.

7. MadelineÓs Apgar scores were 4 at one minute, 9 at 5

minutes and 9 at 10 minutes.

8. The cord blood pH was 7.155.

9. Madeline was in the transitional nursery for a period of

time but was not admitted to the NICU. She then spent two days in

the regular nursery prior to being discharged home. Other than

concerns about MadelineÓs ability to nurse, there appear to have

been no other concerns at discharge.

10. When Madeline was about seven months old, Mrs. Kitchen

began to have concerns about MadelineÓs progress and discussed her

concerns with MadelineÓs pediatrician. In July 2014, Madeline was

seen by Dr. Harry Abram s , a pediatric neurologist with Nemours

ChildrenÓs Clinic in Jacksonville. He concurred with the parentsÓ

concer ns of motor , as well as language delays. Dr. Abrams

recommended an MRI of the brain, referral to Nemours Orthopedics

and Nemours GI, as well as the Early Steps Program anticipating

the need for speech and physical therapy. He also noted mild

microcephaly .

11. Madeline had an MRI of the brain in August 2014 , when

she was approximately 16 months of age. The MRI revealed

Ðbilateral periventricular hyper intense signal areas with cystic

changes with old hemorrhagic products along with the lateral

ventricles lining with a thin corpus callosum consistent with

periventricular leukomalacia. Ñ

12. Following the results of the MRI, Madeline had a follow -

up appointment with Dr. Abrams who reviewed the results with

MadelineÓs parents and Ðdiscussed in detail the usa ge of the term

of Òcerebral palsy.ÓÑ Dr. Abrams Ó notes reflect that the

importance of early intervention was discussed and noted that the

evaluation for the Early Steps Program had already begun.

13. Dr. Abrams again saw Madeline at an appointment i n

December 2014. His notes reflect that the mother reported ongoing

developmental progress, but had expressed frustration at

MadelineÓs therapies being limited to physical therapy once per

month and speech therapy once per week, with no occupational

thera py. Dr. Abrams recommended more frequent therapies.

14. At an appointment in June 2015, Dr. AbramsÓ notes

describe Madeline as a Ð2 - year - old child with mild cerebral palsy

who is making good progress.Ñ

15. At the time of Mrs. KitchenÓs deposition on Ju ly 1,

2015, Madeline was receiving physical therapy (once a week for 30

minutes), speech therapy for eating (once a week for 60 minutes) ,

and occupational therapy consults on an ir regular basis . She is

able to feed herself, mostly with her fingers. Madel ine did not

walk until 18 months of age, but is now walking without having to

hold on to anything. Her left leg is the ÐweakerÑ leg and is

slightly shorter than her right leg. Her left foot turns in.

There have been discussions regarding the possibility of a brace

for her left leg if it does not correct itself. Her speech is

limited to a few words.

16. NICA retained Donald C. Willis, M.D., to review

MadelineÓs medical records. Dr. Willis made the following

findings and expressed the following opinio n in a report dated

April 20, 2015:

I have reviewed the medical records for the

above individual. The mother, Sarah Kitchen

was a 28 year old G1. Her AFP screen was

positive for Down syndrome. She was evaluated

by M aternal - Fetal Medicine. Amniocentesi s was

declined. The abnormal AFP was not a factor

in the outcome of this case.

The mother was seen for decreased fetal

movement three days before delivery.

Biophysical profile (BPP) was 8/8 with normal

amniotic fluid volume (AFI of 10 cms).

Findings sug gested the fetus was not in

distress. Non - stress test (NST) was done the

following day and was reactive, again

suggesting the fetus was not in distress.

The mother presented to the hospital in labor

about two days after the above NST. Her

cervix was dil ated 4 cms. Amniotic fluid was

reported to be clear. Fetal h eart rate (FHR)

tracing during labor was not available for

review, but labor and delivery record reported

Ðmeconium stained fluid and decelerationsÑ as

complications.

Vacuum extractor with two pulls was used to

assist vaginal delivery. Birth weight was

3,538 grams (7 lbs 12 ozÓs). Apgar scores

were 4/9/9. The newborn was intubated for

meconium and suctioned. Arterial cord blood

gas was within normal limits with a pH of

7.155 and a base exces s of - 5.

Newborn physical gives an overall assessment

of normal exam. Newborn hospital course was

uneventful. The baby was discharged home on

two days after birth.

The child was subsequently followed for

developmental delay. MRI on 08/04/2014 (about

1 6 months of age) showed periventricular

leukomalacia.

In summary, there was not significant oxygen

deprivation during labor and delivery and

indicated by normal blood gas and normal Apgar

score at 5 minutes. The newborn hospital

course was uncomplicated .

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.

In a follow - up report dated August 1 3 , 2015, Dr. Willis reaffirmed

his opi nion :

I have reviewed the fetal heart rate (FHR)

tracing for the above individual. The base

line FHR is normal at about 140 bpm on

admission and heart rate variability is

normal. The FHR monitor tracing does not

suggest fetal distress during labor.

The normal appearing FHR tracing would be in

agreement with my previous medical opinion

that the baby did not suffer oxygen

deprivation during labor.

17. Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in loss of oxygen or mech anical

trauma to the babyÓs brain during labor, delivery, or the

immediate post - delivery period is credited.

18. Respondent retained Laufey Y. Sigurdardottir, M.D., to

evaluate Madeline. Dr. Sigurdardottir is a pediatric neurologist

with the Division of Neurology of Nemours . Dr. Sigurdardottir

reviewed MadelineÓs medical records and performed an independent

medical examination on Madeline on July 29, 2015.

Dr. Sigurdardottir made the following findings and summarized her

evaluation as follows:

MEDICAL HISTORY:

Madeline is a 2 - year 4 - month - old Caucasian

female who was born via vaginal delivery at

40 weeks Ó gestation after a normal pregnancy.

The labor was slightly prolonged, some fetal

heart decelerations were noted and the

delivery ended with vacuum ex traction. There

was meconium stained amniotic fluid,

requiring intubation and suctioning below

vocal cords. The patient was 7 pounds 13

ounces at birth, had diminished respiratory

effort at birth and Apgar scores were 4 after

1 minute and 9 after 5 minute s. The patient

was briefly tended to in the transitional

nursery, but then spent 2 days with mom in

the newborn nursery prior to being discharged

home, presumed to be in good health.

Madeline has been found to have significant

delays in both motor and co gnitive

development. She has been diagnosed with a

chronic static encephalopathy including

cerebral palsy with left greater than right -

sided symptoms, language delay and poor

social interaction for age. MRI imaging has

shown signs of old intracerebral he morrhage

and cystic periventricular leukomalacia. Due

to the severity of MadelineÓs delays, her

case is being considered for NICA

compensation.

* * *

Labor history:

Mom presented on 03/09/13 at 10: 10 a.m. and

was admitted for labor. The chart documen ts

a total hours in labor as 62 hours and

documents stage 1 as 60 hours 15 minutes,

stage 2 was 1 hour 54 minutes, and stage 3 as

4 minutes. An epidural anesthesia was used,

the fetal heart rate tracing is not provided

for our review, but there is documen tation of

decelerations without further clarification

in an inpatient summary from Orange Park

Medical Center. Mom reports having push for

more than 1 hour and therefore vacuum

extraction was used. Some documentation

describes forceps attempt, but this c annot be

verified on record review. Two vacuum

attempts were needed and a third degree

perineal laceration was sustained by

MadelineÓs mother. When Madeline was born,

there is no documentation of shoulder

dystocia, and she is noted to be blue and

have po or respiratory effort. Suctioning was

performed below vocal cords due to meconium

staining of amniotic fluid. She had Apgar

score of 4 at 1 minute. Her Apgar scores

quickly improved being 9 after 5 minutes and

9 after 10 minutes with her only lack being

in area of color. Arterial cord blood was

sent revealing a pH of 7.16 with a pCO2 of

67.8 and pO2 of less than 47%. A venous cord

blood was also sent with the pH of 7.24 and a

pC O 2 of 51. Madeline was 50 cm at birth,

3538 g and a head circumference of 32.5 cm,

which places her head circumference to be at

the 8 th percentile, her length to be at the

34 th percentile and her weight at birth to be

at the 62 nd percentile per the CDC growth

curve. The patient was discharged home,

presumed to be in good health .

Developmental and Medical History:

MadelineÓs mother reports early feeding

difficulties. She recalls her being fairly

floppy and that the parents were worried

about delayed visual fixation until about 3 - 4

months of age. MadelineÓs mother brought her

to her pediatrician around the age of 6

months for complaints of not grabbing toys

and not showing interest in rolling over or

sitting up. She had an early frenulectomy

due to poor sucking and was referred for hip

x - rays for poor mobility at the age of 15

months, which was found to be normal. The

patient was referred to physical,

occupational and speech therapy and was able

to walk unassisted around the age of 20

months. The parents feel that her left side

is weaker than her right. She seems

unsteady, h aving a broad stance and frequent

falling. The parents are also worried about

her language development and report her

having only 5 - 6 words (bye - bye, mama, dada,

papa and milk) and a few signs at 2 yr 4

months of age. She seems to be very

attracted to mu sic and will want to listen to

music and dance along. Madeline is not

interested in interacting with her peers.

She loves to swing on swings and will often

just go about the house on her own terms.

Her parents do feel that she will turn

towards their fa ce if they say her name, but

that it has been difficult to get her to

repeat words or point to pictures or label

items. They do feel that she knows her body

parts. Due to concerns for possible cerebral

palsy, she was seen by Dr. Abram of Neurology

in Nem ours ChildrenÓs Specialty Care,

Jacksonville in July of 2014 at the age of 15

months. A neurologic exam did comment on her

head circumference being below the 5 th

percentile, there being no dysmorphic

features and that her neurologic exam did not

have obvi ous asymmetries. An MRI performed

at that time showed: Bilateral

periventricular hyperintense FLAIR signal

areas are seen with a few cystic changes more

severe on the right side. Old hemorrhagic

products are seen along the lining of the

lateral ventricl es. Corpus callosum is thin.

Findings are consistent with periventricular

leukomalacia. Myelination is appropriate for

age. Size and configuration of the

ventricles and basal cisterns appear normal.

There is no evidence of restricted diffusion.

No evide nce of abnormal intracranial

enhancement. The pituitary gland and

cervical medullary junction region appears

normal. Hippocampi appear normal. Posterior

fossa structures including brain stem and

cerebellum appear normal.

* * *

Developmental testing : She has had the

following developmental testing performed in

August of 2014, PLS - 5 language assessment

with a comprehension of 87, expressive

language of 89 and total score within the low

range of normal. The Battelle Developmental

Inventory, however, at the age of 17 months

paints a different picture with motor skills

at 57, self - help and adaptive skills of a

standard score 55, social and emotional a

standard score of 85, cognitive a standard

score of 77 and communication standard score

of 61.

* * *

NEUROLOGIC EXAMINATION: Mental status:

Madeline is on the move throughout the visit,

going from 1 toy to the next and seems

significantly on her own terms for the

majority of the visit. She does at times

interact with her parents, but little eye

contact is noted. She will at times come up

to the examiner briefly. She will look

towards voice at times. She will follow

simple commands such as stop or no. She will

accept food from her parentsÓ hands but not

have joint attention during that time. No

clear repetitive behavior is noted. No

understandable words are heard by the

examiner. Cranial nerves: Her pupils are

equal, they do react to light. She has

conjugate eye movements for the most part,

but occasional left eye extropia is noted,

especially if she is looking up and to the

right. She has symmetric facial features,

but seems to keep her mouth open. Her

hearing seems intact. Her motor exam reveals

diminished axial tone with some tendency for

slip through when held in vertical

suspension. She ha s asymmetric to ne, mainly

in the lower extremities with increased

resistance to passive range of motion in the

left lower extremit y. Her strength seems to

be diminished in bilateral lower extremities

and she will at times keep her knees and hips

slightly flexed during ambulation. Reflexes

are slightly brisker in the left lower

extremity than the right. This is not noted

in upper extremity. She seems to favor her

right upper extremity on exam, using that

consistently to grab for toys. Balance and

coordi nation: There is significant

abnormality with a broad based, slightly

ataxic gait and frequent falls. Her intoeing

does seem to lead to her tripping over her

left foot. She will, however, stand up off

the floor without difficulty. There is

significant clumsiness with fine motor

skills, both on the right and left upper

extremity. There is no seizure - like

occurrences and no clear tremor, no

monoclinic jerking.

Overall assessment: Here we have a 2 - year 4 -

month - old female with chronic static

encephalopat hy manifested by borderline

microcephaly, left greater than right sided

CP, moderate receptive and expressive

language delay and some delays in social

interaction and attention. Her language

testing from one year ago is outdated and her

current language a bilities from what can be

observed here would result in her total

language score below 70. She has motor

disability with bilateral hemiplegic

symptoms, but overall good functional skills

with independent ambulation having been

obtained at 20 months. She is also able to

feed herself orally and has been relatively

physically healthy from birth.

On review of the case, there is no evidence

of a prenatal vascular events or periods of

decreased fetal movements. On review of the

labor and delivery records the re is little to

support a serious ischemic event and her mild

depressed 1 minute apgar score alone with

arterial cord blood pH being 7.16 does not

support such an event.

Results of IME:

As to question 1: The patient is found to

have a permanent but not substantial physical

impairment and mental abilities that are

delayed but progressing.

As to question 2: On review of medical

records, there is minimal evidence of

substantial birth asphyxia. Although initial

Apgar score was 4 there was immediate

recove ry and the mild decrease in arterial

cord blood pH is not below the 7.00 cut off.

The neuroimaging findings are consistent with

a hypoxic ischemic injury but do not help in

the timing of such an injury.

As to question 3: At this time, MadelineÓs

prognos is regarding her motor development are

good, with independent ambulation already in

place. Her cognitive development seems to be

more difficult to prognosticate at this time,

but ongoing speech therapy along with further

workup of possible autistic charac teristics

would be indicated. We expect ongoing

progress in this area and we estimate her

life expectancy as being full. At this time,

it seems likely that she will need

significant ongoing supportive services,

although the need for this lifelong is

unce rtain at this time.

I am therefore not recommending Madeline to

be included into the NICA program and would

be happy to answer additional questions.

19. Dr. SigurdardottirÓs opinion that Madeline has a

permanent , but not substantial , physical impairment and mental

abilities that are delayed , but improving , is credited.

20. Dr. SigurdardottirÓs opinion that there is minimal

evidence of substantial birth asphyxia Ðbut there is little to

support a serious ischemic event and her mild depressed 1 minute

apg ar score alone with arterial blood pH being 7.16 does not

support this eventÑ is credited.

21 . The greater weight of the evidence establishes through

the opinions of two experts that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

injury to Madeline Ós brain during labor, delivery or the post -

delivery period.

22 . Here, the stipulated record demonstrates, along with

Dr. SigurdardottirÓs expert opinion, that MadelineÓs physical

impairment is permanent , but not substan tial, and that mental

abilities are delayed , but progressing. While Madeline has some

motor and mental deficits, these deficits do not render her

permanently and substantially mentally and physically impaired.

CONCLUSIONS OF LAW

23 . The Division of Admi nistrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (201 5 ).

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

compensation on a no - fault basis, for a limited class o f

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 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 neu rological 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 m echanical 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 abnormality. (emphasis added).

25 . 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 cl aim . . . in which to file a response to the petition

and submit relevant written information relating to the issue of

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

§ 766.305(4), Fla. Stat.

26 . 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 han d, 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.

27 . In disch arging 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 satisfacti on 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 reb uttable presumption

shall arise that the injury is a birth - related

neurological injury as defined 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 i mmediate 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 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.

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

that Madeline 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 Petiti oners.

§ 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 tri bunal.").

29 . Dr. WillisÓ opinion that there was not Ðsignificant

oxygen deprivation during labor and delivery Ñ is consistent with

Dr. SigurdardottirÓs opinion that there Ðis little to support a

serious ischemic event. Ñ

3 0. The greater weight of the evid ence establishes that

there was not an apparent obstetrical event that resulted in loss

of oxygen or mechanical injury to MadelineÓs brain during labor,

delivery and continuing into the post - delivery period as

contemplated by the NICA statutes .

3 1. Even if the evidence to support a serious ischemic event

were more substantial, the remaining issue to be determined is

whether the injury resulted in a permanent and substantial mental

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)(the Ð Birnie " decision).

Petitioners and Intervenors take the position that Madeline is

permanently and substantially impaired. NICA takes the position

that Madeline is not permanently and substantially mentally or

physically impaired, irrespective of the timing or cause of any

such impairment.

3 2 . While Petitioners have presented factual evidence

r egarding MadelineÓs difficult birth and that she has physical

impairments and developmental delays, they have not established

through expert opinion that Madeline has a permanent and

substantial mental and physical impairment as contemplated by

section 766 .302 . There have been no expert opinions filed

contrary to the credible opinions set forth above by NICAÓs

experts. Thus, Madeline is not entitled to benefits under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the petition filed by Sarah W. Kitchen

and Steven Kitchen, on behalf of and as parents of Madeline

Elizabeth Kitchen, is dismissed with prejudice.

DONE AND ORDERED this 18th day of May , 2016 , 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 18th day of May , 2016 .

COPIES FURNISHED:

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suit e 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6396)

Rodney Stuart Margol, Esquire

Margol & Margol, P.A.

2029 North 3rd Street

Jacksonville Beach, Florida 32250

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6402 )

Richard E. Ramsey, Esquire

Wicker, Smith, O'Hara,

McCoy and Ford, P.A.

50 North Laura Street, Suite 2700

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6419)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue, Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6426)

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 1200 0002 3330 6433)

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 3330 6440)

Eric J. Edelenbos, D .O.

Suite A

1680 Eagle Harbor Parkway

Orange Park, Florida 32003

(Certified Mail No. 7014 1200 0002 3330 6457)

Robert Roland Powers, D.O.

1605 Kingsley Avenue

Orange Park, Florida 32073

(Certified Mail No. 7014 1200 0002 3330 6464)

NOTICE OF RIGHT TO J UDICIAL 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 notice of administrative appeal

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).