15-006184N Roland And Constance Udenze, On Behalf Of And As Parents And Natural Guardians Of Nina Mmachi Udenze, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 10, 2016.

Summary: Child did not sustain oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLAND AND CONSTANCE UDENZE, on

behalf of and as parents and

natural guardians of NINA MMACHI

UDENZE, a minor,

Petitioners,

vs. Case No. 15 - 6184N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATI ON,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Renewed Motion

for Summary Final Order filed by Respondent, Florida Birth -

Related Neurological Association (NICA), on July 26, 2016.

STATEMENT OF THE CASE

On February 5, 2015, Petitioners, Roland and

Constance Udenze, on behalf of and as parents and natural

guardians of Nina Mmachi Udenze (Nina), a minor, filed a Petition

for Benefits Pursuant to Fl orida Statute Section 766.301 et seq.

(Petition), with the Division of Administrative Hearings (DOAH).

The Petition alleged that Nina suffered brain damage as a result

of a birth - related neurological injury.

The Petition named Daniel C. McDyer, M.D., as t he physician

providing obstetric services at the birth of Nina at Memorial

Hospital, located in Jacksonville, Florida.

DOAH served NICA with a copy of the Petition on November 5,

2015. DOAH served Daniel Charter McDyer, M.D., with a copy of

the Petition on November 6, 2015. NICA served Memorial Hospital

with a copy of the Petition on November 9, 2015.

As of this date, neither Dr. McDyer nor Memorial Hospital

has petitioned to intervene in this proceeding.

On March 14, 2016, NICA filed a response to th e Petition,

giving notice that the injury does not "meet the definition of a

'birth - related neurological injury' as defined in section

766.302(2), Florida Statutes, which specifically requires that

the injury render 'the infant permanently and substantiall y

mentally and physically impaired.'" NICA requested that a

hearing be scheduled to resolve whether the claim was

compensable.

A final hearing was scheduled for May 10, 2016. On

April 11, 2016, NICA filed a Motion for Summary Final Order,

asserting that Nina did not sustain a "birth - related neurological

injury" as that term is defined in section 766.302(2), Florida

Statutes. The Motion was served by United States Mail on

April 11, 2016. No response to the Motion was filed by

Petitioners.

On April 26, 2 016, an Order to Show Cause was entered which

cancelled the May 10, 2016 , hearing and allowed Petitioners until

May 10, 2016, to inform the undersigned as to why a summary final

order should not be entered finding that PetitionersÓ claim is

not compensable . In light of the Petitioners appearing pro se,

the Order referenced the applicable rules which set forth the

time allowed for responses to motions, and granted Petitioners

additional time for response. On May 10, 2016, Petitioners filed

a Response to NI CAÓs Motion for Summary Final Order.

On May 18, 2016, an Order was entered denying without

prejudice NICAÓs Motion for Summary Final Order. On July 26,

2016, NICA filed its Renewed Motion for Summary Final Order,

which was served via United States Mail an d via e - mail. As of

the date of this Summary Final Order of Dismissal, no response to

NICAÓs Renewed Motion has been filed.

FINDINGS OF FACT

1. Nina Udenze was born on April 19, 2013 , at Memorial

Hospital in Jacksonville, Florida.

2. NICA retained Do nald C. Willis, M.D. (Dr. Willis), to

review Nina's medical records. In medical reports dated

February 8 and March 12, 2016, Dr. Willis made the following

findings and expressed the following opinion:

I have reviewed the medical records, pages

1 - 505 fo r the above individual. The mother,

. . . was a 34 year old G3 P2002 with a twin

pregnancy. Nina was the B twins [ sic ] . The

mother had a history of two prior Cesarean

deliveries.

* * *

Repeat Cesarean section was done in early

labor. Fetus B (Nin a Udenze) was in a

transverse lie. The baby was converted to

breech and delivered. Birth weight was 2,152

grams (4 lbs 11 ozÓs). Apgar scores were

6/9.

The baby initially had a poor respiratory

effort and required bag and mask ventilation

for 45 second s with good response. Apgar

score was 9 by five minutes. The baby was

taken to the NICU.

The operative note indicated cord blood gases

were done for both babies. However, only one

cord blood gas result was seen in the

available records (page 298). It was not

labeled A or B and was apparently a venous

sample. The pH was normal at 7.31 with a BE

of - 5. Hospital discharge was on DOL 4. The

baby failed the newborn hearing test.

Placental pathology was normal.

There does not appear to be a birth relate d

hypoxic brain injury based on available, but

medical records are limited. No head imaging

studies were available. It would be helpful

if we could get the cord blood gas for

fetus B.

Thank you for allowing me to review this

case. I will be available t o review any

additional records if they become available.

Specifically, any head imaging studies and

the cord blood gas for fetus B would be

helpful.

* * *

Additional medical records were reviewed for

the above individual, which included two MRI

studies . The first MRI was done at about 8

months of age. A posterior fossa cyst was

identified as well as findings suggestive of

cerebral volume loss. MRI of the spine on

the same day showed scoliosis.

A follow - up MRI was done at about 2 ½ years

of age, again identified the posterior fossa

arachnoid cyst and also described partial

absence of the Falx.

It is also my understanding a co r d blood gas

for this child was not done at birth. The

cord blood gas in the medical records was for

the twin sibling.

The add itional medical records do not change

the opinion given in the previous letter

dated 02/08/2016. There does not appear to

be a birth related hypoxic brain injury or

mechanical trauma resulting in brain or

spinal cord injury.

3. In an affidavit dated Apr il 1, 2016, Dr. Willis

reaffirmed his ultimate 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 i mmediate

post - delivery period.

4. Dr. Willis was deposed on May 26, 2016, wherein he

testified in pertinent part as follows:

Q. Okay. Do the records show that any

mechanical devices such as forceps or vacuum

extractions was used in the delivery?

A. No.

Q. You also note that her apgar scores were

six and nine. Could you explain what an

apgar score is?

A. Yes. The apgar scores are given to the

babies for a couple of reasons. The apgar

score, the first apgar score is at one

minute. And apgar sc ores can be anywhere

from zero to ten. And the apgar score at

one minute tells you how much resuscitation

the baby requires at time of birth. An

apgar score of seven or above would be

considered normal. An apgar score below

seven would be considered low . The one -

minute apgar score is six. So, it was

slightly lower than expected. However, by

five minutes, the apgar score was nine,

which would be a very good score showing

that the baby transitioned well after birth.

Babies that have significant oxygen

deprivations during time of delivery,

usually it takes a longer time for them to

transition and recover. The baby seemed to

recover fairly quickly.

Q. Had there been oxygen deprivation at the

time of delivery, what types of symptoms

would you expect to see?

A. Babies that have significant oxygen

deprivation during the birthing process will

be depressed and require resuscitation.

They usually have respiratory distress. So ,

theyÓll need some type of oxygen bag, mask

ventilation, intubation. And then t hey will

go to the neonatal intensive care nursery at

-- which sometimes they will often have

abnormalities in many of their different

organ systems. For instance, seizure

disorders are very common after brain injury

at time of birth. You can also have r enal

failure, elevated liver function studies,

blood clotting abnormalities. So, babies

that have significant oxygen deprivation at

birth will usually have some combination of

these problems in the nursery. A baby that

goes to the nursery and has a relat ively

benign newborn course in the nursery would

not be consistent with significant oxygen

deprivation during labor or delivery.

Q. And in NinaÓs case, what did the records

indicate regarding her newborn course?

A. The newborn course looked pretty

unco mplicated. In fact, the newborn records

pretty much just show normal newborn care,

no significant problems in the newborn

period. And the baby was discharged home on

the third day of life. So, no prolonged

hospital stay.

* * *

Q. All right. And b ased on your second

letter dated March 2016, which is Exhibit 3,

your final opinion was that there does not

appear to be a birth - related hypoxic injury

or mechanical trauma resulting in brain or

spinal cord injury. Is that still your

opinion today?

A. T hatÓs correct.

Q. During your review of the medical

records, did you find that Nina Udenze

suffered oxygen deprivation occurring in the

course of labor/delivery or resuscitation in

the immediate postdelivery period that would

have resulted in brain injur y?

A. No.

Q. During review of the medical records,

did you find that Nina Udenze suffered a

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period that would

have resulted in brain injury or injury to

her spinal cord?

A. No.

Q. And have your opinions today been

rendered within a reasonable degree of

medical certainty?

A. Yes.

5. Dr. Willis' opinion that there was no apparent

obstetrical event that resulted in loss of oxygen to the baby' s

brain during labor, delivery and continuing into the immediate

post - delivery period, is credited.

6. Respondent retained Michael Duchowny, M.D.

(Dr. Duchowny), a pediatric neurologist, to evaluate Nina.

Dr. Duchowny reviewed Nina's medical records and performed an

independent medical examination on her on February 3, 2016. In

an affidavit dated April 4, 2016, Dr. Duchowny made the

following findings and summarized his evaluation as follows:

5. It is my opinion that:

In SUMMARY , Nina's neurological examination

reveals findings consistent with a

substantial mental and motor impairment.

Although Nina is walking, her gait is

unstable with abnormal motor functioning and

hyerreflexia. Her epicanthal folds were

acquired prenatally and her unilateral

heari ng loss is unexplained. She also has

microcephaly.

A have had an opportunity to review the

medical records which were sent on

January 28, 2016. They reveal that NinaÓs

mother went into labor at 36 weeks gestation

after experiencing spontaneous rupture o f

her membranes. Nina and her fraternal twin

brother were delivered by urgent cesarean

section. The fetal heart rate was stable.

Nina was 4 pounds 11 ounces at birth and had

1 and 5 minute Apgar scores of 6 and 9. She

required positive pressure ventilat ion for

45 seconds but then stabilized and did not

experience subsequent respiratory

complications. There was no evidence of

multiorgan system involvement. Nina was

discharged from Memorial Hospital

Jacksonville on the 5 th day of life.

The medical recor ds do not include the

results of brain imaging studies. Before

making a final determination, I would

request to review the salient imaging

studies.

* * *

I have now reviewed neuroimaging studies

including MR brain imaging. The images do

not reveal find ings consistent with either

an intra - partum hypoxic - ischemic insult or a

mechanical injury.

6. It is my opinion that together with the

record review and neurological evaluation,

the imaging findings confirm that Nina did

not suffer from a birth - related n eurological

injury, and I am therefore not recommending

inclusion within the NICA program.

7. Dr. Duchowny's opinion that Nina d id not suffer from a

birth - related neurological injury is credited.

8. 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 babyÓs brain or spinal cord occurring in the immediate post -

delivery period. Dr. WillisÓ opinion is credited.

Dr. DuchownyÓs opinion that, although Nina has a substantial

mental and motor impairment, she did not suffer from a birth -

related neurological injury, is credited.

CONCLUSIONS OF LAW

9. The Division of Administr ative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2014).

10. The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

cat astrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which

is defined in section 766.302(2) as follows:

"Birth - related neurolog ical 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 by oxygen

deprivation or mechan ical 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 . This definition

shall apply to live birth s only and shall not

include disability or death caused by genetic

or congenital abnormality.

11. 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 c ompensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The

Florida Birth - Related Neurological Injury Compensation

Association, which administers the Plan, has "45 days from the

date of service of a complete claim . . . in which to f ile a

response to the petition and submit relevant written information

relating to the issue of whether the injury is a birth - related

neurological injury." § 766.305(4), Fla. Stat.

12. If NICA determines that the injury alleged in a claim

is a compensab le 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 cl aim, 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.

13. In discharging this responsibil ity, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrativ e 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 sha ll arise that the

injury is a birth - related neurological injury

as defined in s. 766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate postdelivery p eriod 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 obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

14. In the ins tant case, Petitioners filed a claim alleging

that Nina did sustain a birth - related neurological injury that is

compensable under the NICA plan. As the proponent of the issue

of compensability, the burden of proof is upon Petitioners.

§ 766.309(1)(a), F la. Stat. See also Balino v. Dep't of Health &

Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he

burden of proof, apart from statute, is on the party asserting

the affirmative of an issue before an administrative tribunal.").

15. Both Dr. Wil lis and Dr. Duchowny established that there

was no apparent obstetrical event which resulted in loss of

oxygen or mechanical trauma to Nina's brain or spinal cord

occurring in the course of labor, delivery, or resuscitation in

the immediate post - delivery p eriod.

16. The evidence, which is not refuted by competent expert

evidence, established that Nina does not meet the definition of a

Ðbirth - related neurological injury , Ñ as defined in section

766.302(2), Florida Statutes. Thus, Nina is not entitled t o

benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed by Roland and Constance Udenze, on

behalf of and as parents and natural guardians of Nina Udenze, a

minor child, i s dismissed with prejudice, and the final hearing

scheduled for September 30, 2016, is cancelled.

DONE AND ORDERED this 10th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative La w 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 10t h day of August , 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 7 015 0640 0001 2700 7077)

Roland Udenze

Constance Udenze

Apartment 370

12620 - 3 Beach Boulevard

Jacksonville, Florida 32246

(Certified Mail No. 7015 0640 0001 2700 7084)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Talla hassee, Florida 32301

(eServed)

(Certified Mail No. 7015 0640 0001 2700 7091)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 000 1 2700 7107)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0001 2700 7114)

Daniel Charter McDyer, M.D.

Suite 34 0

3627 University Boulevard

Jacksonville, Florida 32216

(Certified Mail No. 7015 0640 0001 2700 7121)

Memorial Hospital

Attention: Risk Management

3625 University Boulevard South

Jacksonville, Florida 32216

(Certified Mail No. 7015 0640 0001 2700 7138)

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 App ellate 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 fi ling 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).