15-001869N Brittany Isom, On Behalf Of And As Parent And Natural Guardian Of Maliyah Jones, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association (Nica) Status: Closed DOAH Final Order on Monday, January 4, 2016.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTANY ISOM, on behalf of and

as parent and natural guardian

of MALIYAH JONES, a minor,

Petitioner,

vs. Case No. 15 - 1869N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION (NICA),

Respo ndent,

and

RONNIE JO STRINGER, ARNP, CNM;

NORTH FLORIDA WOMAN CARE, LLC,

d/b/a GAINESVILLE OB/GYN; AND

NORTH FLORIDA REGIONAL MEDICAL

CENTER,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

December 10, 2015.

STATEMENT OF THE CASE

On April 6, 2015, Petitioner, Brittany Isom, on behalf of

and as parent and natural guardian of Maliyah Jones (Maliyah), a

minor, filed an Amended Petition for Benefits Pursuant to Florida

Statute Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH) for a dete rmination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Ronnie Jo

Stringer, ARNP, CNM, and Gainesville OB/GYN, as the medical

providers who provided obstetrical services at the birth of

Maliyah on May 28, 2013, at North Florida Regional Medical Center

located in Gainesville, Florida.

DOAH served NICA with a copy of the Petition on April 8,

2015. DOAH served Ronnie Jo Stringer, ARNP, CNM, and Gainesville

OB/GYN with a copy of the Petition on April 9, 2015. On

April 1 3 , 2015, DOAH received a return receipt from the United

States Postal Service showing that North Florida Regional Medical

Center had been served with a copy of the Petition.

On June 2, 2015, Ronnie Jo Stringer, ARNP, CNM, and North

Florida Woman Care, LLC, d/b/a Gainesville OB/GYN, filed a

Petition for Leave to Intervene, which was granted by Order dated

June 9, 2015. On July 2, 2015, North Florida Regional Medical

Center filed a Petition to Intervene which was granted by Ord er

dated July 10, 2015.

On December 10, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. As of the date of t his Summary

Final Order of Dismissal, no response has been filed to the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Maliyah Jones was born on May 28, 2013, at North Florida

Regional Medical Center located in Gainesville, Florida. Maliyah

weig hed 3,870 grams at birth.

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

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

dated September 15, 2015, Dr. Willis opined as follows:

In summary, delivery was complicated by a

shoulder dystocia, which resulted in an ErbÓs

palsy. Although depressed at birth, the baby

had a good response to resuscitation (bag and

mask ventilation) with an Apgar score of 9 at

five minutes. The babyÓs condition was

stated to be stable on admission to the NICU.

The newborn hospital course was complicated

only by the ErbÓs palsy. Discharge was on

DOL 2.

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 po st delivery

period.

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

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

and to review her medical records. Dr. Sigurdardottir examined

Maliyah on October 28, 2015. In a medical report regar ding her

independent medical examination of Maliyah, Dr. Sigurdardottir

opined as follows:

Summary: Maliyah is a 2 - 1/2 year - old born at

term after an uncomplicated pregnancy with

shoulder dystocia resulting in a near

complete ErbÓs palsy. She has require d 2

surgical procedures and does have significant

disability as per the Mallet scale and is

likely to need more surgical procedures to

enhance her functional abilities in her right

upper extremity. She is, however,

functioning well from a cognitive level and

her gross motor skills are otherwise intact.

In review of the medical records available,

it seems clear that her right brachial

plexopathy did occur at birth due to

mechanical injury. In light of her favorable

cognitive and language development our

f indings are the following:

Result as to question 1: The patient is

found to have a permanent physical

impairment, but to have none or mild delays

in language development. She is therefore

not found to have a substantial mental and

physical impairment at this time.

* * *

In light of the above - mentioned details,

MaliyahÓs restricted motor disability and

near normal cognitive development, I do not

recommend Maliyah to be included into the

Neurologic Injury Compensation Association

Program and would be h appy to answer

additional questions or review further

medical records. In light of her favorable

mental and developmental state it is doubtful

that additional records would alter the

outcome of our review. She is not felt to

have a substantial mental imp airment at this

time.

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 tra uma 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 Maliyah is not found to have a

substantial mental impairment at this time. Dr. SigurdardottirÓs

opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

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

§§ 766.301 - 7 66.316, 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" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fl a. 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 relating 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 judg e 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 chap ter 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 upon the

available evidence:

(a) Whether the injury claimed is a birt h -

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 the reby

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 p articipating 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, o r 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.

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 spin al 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

Maliyah did not sustain an i njury 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 which rendered her permanently and

substantially mentally and physica lly impaired. Therefore,

Maliyah 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

Brittany Isom, on behalf of Maliyah Jones, i s dismissed with

prejudice.

DONE AND ORDERED this 4th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 4th day of January , 2016 .

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. 7012 3050 0000 1249 8376)

David Ryan Best, Esquire

Best Law Fir m Florida, P.A.

Post Office Box 3306

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8383)

David R. Kuhn, Esquire

Rissman, Barrett, Hurt, Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32802

(eServed)

( Certified Mail No. 7012 3050 0000 1249 8390)

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm

225 East Robinson Street , Suite 475

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 2120 0003 1047 4781)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1047 4798)

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 0003 1047 4804)

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 2120 0003 1047 4811)

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 A ppellate 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).