15-006199N Shawn E. Ware, Individually And On Behalf Of Jordan Ware, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Wednesday, February 24, 2016.

Summary: Child did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to brain during labor, delivery or the immediate post-delivery period. Claim barred by statute of limitations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAWN E. WARE, individually and

on behalf of JORDAN WARE, a

minor,

Petitioner,

vs. Case No. 15 - 6199N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

ORLAN DO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL; JAYASRI

BUKKAPATNAM, M.D.; AND STEPHANIE

L. ZOBEL, M.D., f/k/a STEPHANIE

L. LADOWSKI, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a n Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on February 16 , 201 6 .

STATEMENT OF THE CASE

On November 3 , 201 5 , Petitioner, S hawn E. Ware , individually

and on behalf of Jordan Ware ( Jordan ), a minor, filed a Petition

Under Protest Pursuant to Florida Statute Section 766.301 et seq.

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

for a determination of compensabili ty under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). The

Petition named Jayasri Bukkapatnam , M . D. , and Stephanie L.

Ladowski, M.D., as the physician s who provided obstetric services

for the birth of Jordan on July 28, 2008, at Winnie Palmer

Hospital in Orlando , Florida .

According to the United States Postal Service website, DOAH

served NICA with a copy of the Petition on November 5, 2015.

DOAH served Jayasri Bukkapatnam, M.D., and Winnie Palmer Hospital

a copy of the Petition on November 9, 2015. DOAH served

Stephanie L. Ladowski, M.D., with a copy of the Petition on

November 13, 2015.

On November 19, 2015, Orlando Health, d/b/a Winnie Palmer

Hospital, Jayasri Bukkapatnam, M.D., and Stephanie L. Zobel,

M.D., f/k/a Stephanie L. Ladowski, M.D., filed a Petition to

Intervene, which was granted by Order dated December 2, 2015.

On February 16 , 201 6 , NICA filed a n Unopposed Motion for

Summary Final Order, requesting that a s ummary f inal o rder be

entered finding that the claim was not compensable because Jordan

did not sustain a Ðbirth - related neurological injuryÑ as that

term is defined in section 766.302(2), Florida Statutes .

FINDINGS OF FACT

1. Jordan Ware was born on July 28 , 2 008 , at Winnie Palmer

Hospital in Orlando , Florida.

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

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

December 14 , 201 5 , Dr. Willis described his findings in pertinent

part as follows:

Cesarean section was uncomplicated. Am niotic

fluid was clear. Birth weight was 2,914

grams or 6 lbs 7 ozÓs. The baby was not

depressed at birth. Apgar scores were normal

at 9/9. Cord blood gas was normal with a pH

of 7.25.

* * *

Seizures were diagnosed in 2003, at about 5

years of age. Neurology clinic at 6 years of

age gives a history of seizures and

developmental delay. EEGÓs were either read

as normal, or patterns consistent with

heightened tendency for seizures.

CT scan was done at one year of age for

failure to thrive and was neg ative. MRI in

2014 identified mesial temporal sclerosis,

which is a finding consistent with epilepsy.

In summary, Cesarean section delivery was

done at 36 weeks due to a non - reassuring FHR

pattern and reduced amniotic fluid volume.

The baby was not depr essed at birth. Apgar

scores were 9/9 and pH was normal at 7.25.

The baby was described as a healthy newborn.

The newborn hospital course was benign.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the ba byÓs brain during labor,

delivery or the immediate post delivery

period.

3. A review of the file reveals that no contrary evidence

was presented to dispute Dr. WillisÓ finding that JordanÓs

injuries were not the result of oxygen deprivation or mechanic al

injury during labor, delivery, or the immediate post - delivery

period. Dr. WillisÓ opinion is credited.

4. The Petition was filed on November 3, 2015, which is

more than five years after JordanÓs birth.

CONCLUSIONS OF LAW

5 . The Division of Administr ative 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 - r elated 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 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 s ubmit relevant written information relating to

the issue of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

8 . NICA has determined that Petitioner do es not have a

claim that is compensable under the Plan and has fil ed a Motion

for Summary Final Order, requesting that an order be entered

finding that the claim is not compensable.

9 . In ruling on the motion, the a dministrative l aw ju dge

must make the following determination based upon the available

evidence:

(a) Whet her 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

caused by oxygen deprivation or mechanical

in jury 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).

§ 766.309(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 weighing at least 2,500 grams for a

single gestation or, in th e 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 re nders the

infant permanently and substantially mentally

and physically impaired.

11 . The evidence, which is not refuted, established that

there was not an obstetrical event that resulted in loss of

oxygen or mechanical trauma to JordanÓs brain during la bor,

delivery or the immediate post - delivery period. Thus, Jordan is

not eligible for benefits under the Plan.

12. Moreover, the Petition Under Protest was filed more

than five years after the birth of Jordan. This is beyond the

five - year statute of l imitations set forth in section 766.313,

and is, therefore, barred.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Shawn E. Ware ,

individually and on behalf of Jordan Ware , a minor, i s dismissed

with prejudice.

DONE AND ORDERED this 24th day of February , 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

Division of Administrative Hearings

this 24th day of February , 2016 .

COPIES FURNISHED:

(via certified mail)

Ken ney 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 8482)

Maria D. Tejedor, Esquire

Diez - Arguell es & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8499)

Michael R. D Ó Lugo, Esquire

Wicker, Smith, O Ó Hara, McCoy, Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8505)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8512)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1249 8529)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee , Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8536)

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), Florid a 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 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. Carrer as , 598 So. 2d 299 (Fla. 1st DCA

1992).