15-002498N Amanda Bragg, Individually And As Parent Of Bentley Bragg, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 19, 2016.

Summary: Child did not suffer an injury to the brain or spinal cord during labor, delivery, or in immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMANDA BRAGG, individually and

as parent of BENTLEY BRAGG, a

minor,

Petitioner,

vs. Case No. 15 - 2498N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES AND GREGORY A.

ZITTEL, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Su mmary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

December 10, 2015.

STATEMENT OF THE CASE

On April 27, 2015, Petitioner, Amanda Bragg, individually

and as parent of Bentley Bragg (Bentley ), a minor, filed a

Petition for Determination of Compensability 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 Birth - Related Neurol ogical

Injury Compensation Plan (Plan). The Petition named

Gregory Allan Zittel, M.D . , as the physician who provided

obstetrical services at the birth of Bentley on May 9, 2013, at

Winnie Palmer Hospital located in Orlando, Florida.

DOAH served NICA with a copy of the Petition on May 9, 2015.

DOAH served Gregory Allan Zittel, M.D . , with a copy of the

Petition on May 7, 2015. The docket reflects that a copy of the

Petition was mailed to Winnie Palmer Hospital on May 5, 2015.

On May 27, 2015, Orlando Heal th, Inc., d/b/a Winnie Palmer

Hospital for Women & Babies and Gregory A. Zittel, M.D., filed a

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

June 9 , 2015.

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

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. In its Motion for Summary Final

Order, NICA represents that Intervenors do not oppose the Motion.

During a telephone heari ng on December 15, 2015, Petitioner was

afforded additional time to respond to NICAÓs Motion for Summary

Final Order. As of the date of this Summary Final Order of

Dismissal, which is after the additional time granted, no

response has been filed to the Mo tion for Summary Final Order by

Petitioner.

FINDINGS OF FACT

1. Bentley Bragg was born on May 9, 2013, at Winnie Palmer

Hospital located in Orlando, Florida. Bentley weighed 4,233

grams at birth.

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

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

dated July 23, 2015, Dr. Willis opined as follows:

Delivery was complicated by a shoulder

dystocia, resulting in about a one minute

delay in delivery. The baby was eventually

delivered after extension of an episiotomy

and rotation of the posterior arm. Birth

weight was 4,233 grams (9 lbs 5 ozÓs). This

would be large - for - gestational age (LGA).

Apgar scores were 3/8. Bag and mask

ventilation was given for about 80 seconds.

The baby had no movement of the left arm.

Left brachial plexus injury was diagnosed.

Newborn exam and hospital course were

otherwise benign. The baby had significant

bruising and was evaluated by Hematology and

monitored for bilirubin levels.

There were not EEGÓs or imaging studies of

the brain.

In summary, delivery of the LGA baby was

complicated by a shoulder dystocia which

resulted in a brachial plexus injury.

Hospital and medical records did not suggest

oxygen deprivation or brain injury. MRI of

the cervical sp ine after hospital discharge

was reported as a Ðnormal cervical spine.Ñ

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, delivery or the immediate post

delivery p eriod.

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

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

and to review his medical records. Dr. Sigurdardottir examined

Bentley on September 2, 2015. In a medical report regarding her

ind ependent medical examination of Bentley, Dr. Sigurdardottir

opined as follows:

Overall assessment, here we have a 2 - year 4 -

month - old male with a severe upper brachial

plexus injury, which has required muscle and

tendon transfer surgery because of an

increa sing deformity of shoulder and shoulder

contraction. He does have fairly sustained

functional abilities, although not complete.

Bentley also has an expressive language delay

that is not felt to relate to his physical

brachial plexus injury which definitel y is

birth related. Mild depression at birth with

an Apgar score of 3 did show prompt recovery

and a cord pH that was within normal limits.

Result as to question 1: The child is found

to have a permanent physical impairment, but

no obvious mental impair ment. His mild

expressive language delay does not

substantiate a profound mental impairment.

* * *

Due to the fact that BentleyÓs disability

only relates to physical impairment and no

clear mental impairment related to birth -

related neurologic injury can be found, I am

not recommending Bentley to be included into

the Neurologic Injury Compensation

Association (NICA) program and would be happy

to answer additional questions.

4. A review of the file in this case reveals that there

have been no expert o pinions 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 ha ve been no expert opinions filed that are contrary to

Dr. SigurdardottirÓs opinion that Bentley is not found to have a

substantial mental impairment. Dr. SigurdardottirÓs opinion is

credited.

5. Moreover, in res ponse to an interrogatory served to

Petitioner by NICA, Petitioner acknowledged that she does not

contend that Bentley suffers from a permanent and substantial

mental impairment.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has jurisdict ion

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 c laims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. 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 compensat ion 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.

9 . 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.

1 0 . 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 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

c aused 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. 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 "i nfant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 1 . The term "birth - related neurological injury" is defined

in section 766.302(2) as fol lows:

"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 b y 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 . ÐThe statute is written in the conjunctive and can only

be interpreted to require permanent and substantial impairment

that has both physical and mental elements.Ñ Fla. Birth - Related

Neurological Injury Comp. Ass Ó n. v. Fla. Div. of Admin. Hearings ,

686 So. 2d 1349, 1356 (Fla. 1997).

1 3 . The evidence, which is not refuted, established that

Bentley 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 imme diate post -

delivery period in a hospital which rendered him permanently and

substantially mentally and physically impaired. Therefore,

Bentley is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusio ns of

Law, it is ORDERED that the Petition filed by Amanda Bragg,

individually and as parent of Bentley Bragg, is dismissed with

prejudice.

DONE AND ORDERED this 19th day of January , 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

D ivision of Administrative Hearings

this 19th 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. 7014 1200 0002 3336 3931)

Jonathan T. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 North Orange Avenue , Suite 830

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 1200 0002 3336 3948)

Andrea L. Diederich, Esquire

Marshall Dennehey Warner Coleman & Goggin

Coleman, and Goggin

315 East Robinson Street , Suite 550

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 1200 0002 3336 3955)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 1200 0002 3336 3962)

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 3336 3979)

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 3986)

NOTI CE 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 fe es 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).