15-001532N Artaveus Hampton And Edward Drummond, Individually And On Behalf Of D?Taveus Drummond, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Monday, March 7, 2016.

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 and delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTAVEUS HAMPTON AND EDWARD

DRUMMOND, individually and on

behalf of DÓTAVEUS DRUMMOND, a

minor,

Petitioner s ,

vs. Case No. 15 - 1532N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

HAINES CITY HMA, LLC, d/b/a

HEART OF FLORIDA REGIONAL

MEDICAL CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Mot ion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

February 23, 2016.

STATEMENT OF THE CASE

On March 12, 2015, Petitioners, Artaveus Hampton and

Edward Drummond, individually and on behalf of DÓ T aveus Drummond

(DÓ T aveus), a minor, filed a Petition Under Protest 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 Bi rth - Related Neurological

Injury Compensation Plan (Plan). Petitioners filed an Amended

Petition Under Protest on July 30, 2015. The Amended Petition

named Mark Alkass, M.D., as the physician providing obstetrical

services at the birth of DÓ T aveus on Sept ember 3, 2010, at Heart

of Florida Regional Medical Center located in Davenport, Florida.

DOAH served NICA and Heart of Florida Regional Medical

Center with a copy of the Petition on March 23, 2015. DOAH

served Mark Alkass, M.D., with a copy of the Petiti on on

March 30, 2015.

On March 31, 2015, Haines City HMA, d/b/a Heart of Florida

Regional Medical Center, filed a Petition to Intervene which was

granted by Order dated April 8, 2015.

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

Mark Alkass, M.D., has not petitioned to intervene in this

proceeding.

On February 23, 2016, NICA filed a Motion for Summary Final

Order, asserting that DÓ T aveus did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Flor ida Statutes. On December 23, 2015, the parties

filed a Joint Response to Order stating that the parties

conferred and agreed that the parties were not requesting a

hearing on the issue of compensability or notice, and that there

was no need to set this c ase for final hearing.

FINDINGS OF FACT

1. DÓ T aveus Drummond was born on September 3, 2010, at

Heart of Florida Regional Medical Center located in Davenport,

Florida. DÓ T aveus weighed more than 2,500 grams at birth.

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

to review the medical records for DÓ T aveus to determine whether

an injury occurred to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

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

period. In a medical report dated May 12, 2015, Dr. Willis

described his findings in part as follows:

Spontaneous vaginal delivery was complicated

by a shoulder dystocia. Birth weight was

3,766 grams or 8 lbs 5 ozÓs. The baby was

depressed at birth, but responded quickly to

resuscitation. There was no respiratory

effort at birth. Apgar score at one minute

was 5. Bag and mask ventilation was given

for one minute and an injection of narcan was

given to reverse the respiratory dep ression

effects of narcotics given during labor. The

baby responded to resuscitation efforts and

the Apgar score was 8 by five minutes.

The baby did not move the right arm after

birth. ErbÓs palsy was diagnosed.

Otherwise, the newborn hospital course w as

uncomplicated and the baby was discharged

home with the mother two days after birth.

MRI of the spine at 4 months of age

identified a traumatic neuroma of the right,

but no abnormalities of the cervical spine.

MRI of the brain was normal. Nerve graph was

done at about 6 months of age. Neurology

evaluation at that time stated the child was

developmentally on target at 6 months of age.

In summary, delivery was complicated by a

shoulder dystocia and resulting brachial

plexus injury. The baby did not ha ve

problems related to birth hypoxia. Newborn

course was complicated only by the brachial

plexus injury.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, deliv ery or the immediate post

delivery period.

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

December 11, 2015.

4. NICA retained Laufey Sigurdardottir, M.D.

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

DÓ T aveus and to review his m edical records. Dr. Sigurdardottir

examined DÓ T aveus on November 4, 2015. In an affidavit dated

February 19, 2016, Dr. Sigurdardottir opined as follows:

Summary: Her e we have a 5 - year 1 - month old

boy with known shoulder dystocia leading to

right bracial plexopathy which occurred at

birth. He has required multiple procedures

to address his traumatic neuromas as well as

increase his functional ability but yet has

significant disability in the functional

abilities of his right upper extremity.

There is no history given or relayed to us

regarding his mental abilities, but on

observation during his visit, he is noted to

be verbal and have no clear major mental

impairment.

Result as to question 1: The patient is

found to have mild or no mental impairment.

* * *

In light of the above - mentioned details

including his normal or near normal mental

capacity and limited motor disability to his

upper extremity, I do not recommend DÓ T aveus

to be included into the Neurologic Injury

Compensation Association (NICA) Program.

5. 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

immediate post - delivery period. Dr. WillisÓ opinion is credited.

There are no contrary expert opinions filed that are contrary to

Dr. SigurdardottirÓs opinion that DÓ T aveus has mild or no mental

impairment with normal to near normal mental capacity .

Dr. SigurdardottirÓs opinion is credited.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

7. 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), F la. Stat.

8. 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. NIC A,

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 neurologica l

injury." § 766.305(4), Fla. Stat.

9. 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 jud ge 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 cha pter 120, Florida Statutes.

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

10. 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 bi rth -

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 t hereby

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 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 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 obstetric al services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

11. 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 sp inal 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.

1 2 . The evidence, which is not refuted, established that

DÓ T aveus did not sustain a n injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course

of labor and delivery, which rendered him permanently and

substantially mentally impaired. Therefore, DÓ T aveus is not

eligible for benefits under the Plan . §§ 766.302(2) and

766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Artaveus Hampton

and Edward Drummond, individually and on behalf of DÓT aveus

Drummond, is d ismissed with prejudice.

DONE AND ORDERED this 7th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 7th day of March , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipl ey, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3336 2903)

Maria D. Tejedor, Esquire

Jack T. Cook, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8710)

Michael R. D Ó Lugo, Esquire

Wicker, Smith, O Ó Hara, McCoy, Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802

(eServed)

(Ce rtified Mail No. 7014 1200 0002 3330 8727)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8734)

Amie Rice, Investigation Manager

Consumer Services Uni t

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 1200 0002 3330 8741)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

T allahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8758)

Mark Alkass, M.D.

Heart of Florida OB/GYN Associates

2221 North Boulevard West

Davenport, Florida 33837

(Certified Mail No. 7014 1200 0002 3330 8765)

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 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).