15-003296N Kanisha Williams, Individually And Victoryia Williams, Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Monday, August 24, 2015.

Summary: Child did not sustain an injury to the brain caused by oxygen deprivation or mechanical injury in the course of labor, delivery or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KANISHA WILLIAMS, individually

and VICTORYIA WILLIAMS, minor,

Petitioner s ,

vs. Case No. 15 - 3296N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent.

_______________ ________________/

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 July 21,

2015 .

STATEMENT OF THE CASE

On June 3, 2015, Petitioner s , Kanisha Williams, individually

and Victoryia Williams ( Victoryia ), a minor, filed a Petition

Under Protest Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of A dministrative Hearings (DOAH)

for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). The

Petition named Ramon Hechavarria, M.D., as the physician

providing obstetrical services at the birth of V ictoryia on

May 3, 2012, at North Shore Medical Center located in Miami,

Florida.

DOAH served NICA with a copy of the Petition on June 15,

2015 . On June 24, 2015, DOAH received return receipts from the

United States Postal Service showing that Dr. Hechava rria and

North Shore Medical Center had been served with a copy of the

Petition.

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

neither Ramon Hechavarria , M.D., nor North Shore Medical Center

has petitioned to intervene in this proceeding.

On Ju ly 21, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. It is noted that the Petition was

filed under protest and that Petitioner s assert that they are not

claimants . Referencing the Petition and the affidavit attached

to the Motion for Summary Final Order, NICA asserts that there

are no genuine issues of material fact regarding the

compensability of this claim.

No objection has been filed to the Motion. On J uly 30 ,

2015, NICA filed a Response to Order of J uly 20 , 2015, advising

that Petitioner s and Respondent agree that no hearing is

necessary.

FINDINGS OF FACT

1. Victoryia Williams was born on May 3, 2 012, at North

Shore Medical Center located in Miami, Florida.

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

to review the medical records for Victoryia . In a report dated

July 15, 2015 , Dr. Willis described his findings in pertinent

part a s follows:

Delivery was by spontaneous vaginal birth.

Birth weight was 3,740 grams or 8 lbs 4 ozÓs.

Amniotic fluid was clear. The baby was not

depressed at birth. Apgar scores were 9/9.

The baby had a normal newborn hospital

course. Admission physica l exam in the

nursery diagnosed Ðterm newborn female.Ñ

Transition was stated to be Ðunremarkable.Ñ

The baby was out of the nursery and with the

mother about 5 hours after birth.

Records after hospital discharge indicate the

child developed seizures at a bout 5 months of

age. Genetic evaluation was done at about 14

months due to seizures and no genetic

abnormalities were found. The baby was not

dysmorphic. MRI at this time showed volume

loss.

In summary, prenatal course was

uncomplicated. Labor was in duced at 39

weeks. There was no fetal distress during

labor. A variable FHR pattern developed just

prior to delivery and would be considered

fairly normal second stage of labor FHR

pattern. This period of variable

decelerations did not result in oxygen

deprivation to the baby. The baby was

delivered by spontaneous vaginal delivery and

was not depressed at birth. 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.

3. In an affidavit dated J uly 17, 2015, Dr. Willis

confirmed his opinion as stated in his medical report and opined

as follows:

5. It is my opinion that the prenatal cour se

was uncomplicated. Labor was induced at 39

weeks. There was no fetal distress during

labor. A variable FHR pattern developed just

prior to delivery and would be considered

fairly normal second stage of labor FHR

pattern. This period of variable

dece lerations did not result in oxygen

deprivation to the baby. The baby was

delivered by spontaneous vaginal delivery and

was not depressed at birth. The newborn

hospital course was uncomplicated.

6. As such, it is my opinion that there was

no apparent ob stetrical event that resulted

in loss of oxygen or mechanical trauma to the

babyÓs brain during labor, delivery or the

immediate post delivery period.

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

have been no opinions filed that are contrary t o 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 during labor , delivery or the immediate post - delivery

period. Dr. WillisÓ opinion is credited.

CONCLU SIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

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

§§ 766.301 - 766.316, Fla. Stat.

6. The Plan was established by the Legislature "for the

purpose of providing compe nsation, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

7. The injured infant, her or his personal representative,

parents, dependents, and next of k in 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 com pensable 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 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.

9. In discharging this respon sibility, 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

administra tive 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 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 awar d 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 ter m "birth - related neurological injury" 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

mult iple 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

Victoryia did not sustain an injury to the brain caused by oxygen

deprivation or mechanical injury in the course of labor , delivery

or the immediate post - delivery period . Therefore, Victoryia 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 Petition filed by Kanisha Williams,

individually and Victoryia Williams, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 24th day of August , 2015 , 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 24th day of August , 2015 .

COPIES FUR NISHED:

(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 2120 0000 0359 2983)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0000 0359 2990)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 3332 4

(eServed)

(Certified Mail No. 7014 2120 0000 0359 3003)

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 0000 0359 3010)

Elizabe th Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0000 0359 3027)

Ramon Hechavarria, M.D.

241 East 49th Street

Hialeah, Florida 33013

(Certified Mail No. 7014 2120 0000 0359 3034)

North Shore Medical Center

Attention: Risk Management

1100 Northwest 95th Street

Miami, Florida 33150 - 2098

(Certified Mail No. 7014 2120 0000 0359 3041)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a fi nal 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 f iling 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 app ropriate 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).