15-005659N Sarah Renee Kobryn, On Behalf Of And As Parent And Natural Guardian Of Westin David Kobryn, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 10, 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, delivery, or resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH RENEE KOBRYN, on behalf of

and as parent and natural

guardian of WESTIN DAVID KOBRYN,

a minor,

Petitioner,

vs. Case No. 15 - 5659N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

R espondent.

_______________________________/

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 Compensatio n Association (NICA), on April 18,

2016.

STATEMENT OF THE CASE

On October 9, 2015, Petitioner, Sarah Renee Kobryn, on

behalf of and as parent and natural guardian of Westin David

Kobryn (Westin), a minor, filed a Petition for Benefits 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 Neurological

Injury Compensation Plan (Plan). The Petition named Sharon M.

Desmarais, M.D. , as the physician who provided obstetrical

services at the birth of Westin on November 27, 2013, at Baptist

Medical Center South located in Jacksonville, Florida.

DOAH served NICA with a copy of the Petition on October 14,

2015. On October 19, 2015, DOAH received a return receipt from

the United States Postal Service showing Sharon M. Desmarais,

M.D., had been served with a copy of the Petition. On

December 11, 2015, DOAH received a return receipt from the United

States Postal Office showing that Baptist Medical Center South

had been served with the Petition.

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

neither Dr. Desmarais nor Baptist Medical Center South has

petitioned to intervene in this proceeding.

On April 1, 2016, NICA filed a Respon se to Order Dated

February 15, 2016, stating in part that Petitioner informed

counsel for NICA that Petitioner no longer intends to obtain

legal counsel in this matter and does not intend to contest

NICAÓs determination that the claim is not compensable.

On April 18, 2016, NICA filed a Motion for Summary Final

Order, asserting that Westin 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 this Summary

Final Order of Di smissal, no response has been filed to the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Westin David Kobryn was born on November 27, 2013, at

Baptist Medical Center South located in Jacksonville, Florida.

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

to review the medical records for Westin. In an affidavit dated

April 1, 2016, Dr. Willis opined as follows:

In summary, labor was induced for post - dates.

Cesarean section was done for arrest of

decent. The baby was depressed at bi rth with

Apgar scores of 1/4/8, required intubation,

but respiratory distress resolved quickly.

Cord blood gas was within normal limits (pH

of 7.11). The baby did not have any

significant problems during the newborn

hospital stay. Head imaging studies we re not

done.

As such, it is my opinion that there was no

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

babyÓs brain or spinal cord occurring in the

course of labor, delivery, or resuscitation

in the immediate post delivery period.

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

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

and to review his medical records. Dr. Sigurdardottir examined

Westin on January 6, 2016. In an affidavit dated April 15, 2016,

regarding her independent medical examination of Westin,

Dr. Sigurdardottir opined as follows:

The summary of the examination is as follows:

Here we have a 2 - year 1 - month - old with

documented low Apgar scores of 1 at 1 minute,

4 at 5 minutes and 8 a t 10 minutes. He

required endotracheal intubation at birth,

but was discharged successfully after a rule

out sepsis admission at 3 days of life. He

has since then had a very mild delay in motor

development and a more pronounced delay in

language developm ent with possible autistic

features, although he does not carry that

diagnosis at this time. Language testing has

revealed normal language comprehension, but a

mild expressive language delay.

. . . The patient is found to have no

substantial physical imp airment and to have a

mild mental impairment, mainly in areas of

expressive language and possible autistic

features.

. . . There is evidence of a perinatal

depression (low Apgars) and a mixed metabolic

and respiratory acidosis that quickly

resolved and no evidence of neurologic

impairment or multisystem dysfunction in the

immediate postnatal period is documented.

MRI findings from December 2015 show non

specific white matter abnormalities and a

congenital abnormality (cavum Septum

Pellucidum).

. . . We would expect full life expectancy

as he has no noticeable motor impairment and

mild delays in language development. His

possibly autistic features will need further

testing. Overall p rognosis in areas of

cognition are fair.

As such, it is my opinion tha t the IME and

record review do not support a finding that

Westin suffered a birth - related neurological

injury. I therefore do not recommend

consideration for inclusion within the NICA

program.

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 trauma to the

baby's brain or spinal cord during labor, delivery or

resuscitation in th e immediate post - delivery period. Dr. WillisÓ

opinion is credited. There are no expert opinions filed that are

contrary to Dr. SigurdardottirÓs opinion that Westin has no

substantial physical impairment and to have a mild mental

impairment, mainly in are as of expressive language.

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 - 766.316, 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), Fla. Stat.

7. The injured in fant, 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 Pla n, 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), Fl a. 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 judge to whom the claim has bee n

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 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 inju ry. 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 thereby

rendered permanently a nd 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 t he

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

imme diate 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 spinal cord of a live

infant we ighing 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

Westin 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 immediate post -

delivery period in a hospital which rendered him permanently and

substantially mentally and physically impaired. Therefore,

We stin is not eligible for benefits under the Plan.

DONE AND ORDERED this 10th day of May, 2016 , in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 10th day of May, 2016 .

COPIES FURNISHED:

(via certifi ed mail)

Sarah Renee Kobryn

645 Cattail Drive

Ogden, Utah 84404 - 6775

(Certified Mail No. 7014 1200 0002 3330 9090)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Ta llahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6334)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6341)

Amie R ice, 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 6358)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Car e Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 6365)

Sharon M. Desmarais, M.D.

6879 Southpoint Drive North

Jacksonville, Florida 32216

(Certified Mail No. 7014 1200 0002 3330 6 372)

Baptist South Medical Center

Attention: Risk Management

14550 Old Saint Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 1200 0002 3330 6389)

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 Appellate Procedure. Such proceedings are

commenced by filing the original n otice of a dmin istrative 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).