15-006787N Crystal Sumpter And Peter Davis, On Behalf Of And Parents And Natural Guardians Of Luke Z. Davis, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 28, 2016.

Summary: Child does not suffer from a substantial mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRYSTAL SUMPTER and PETER DAVIS,

on behalf of and parents and

natural guardians of LUKE Z.

DAVIS, a minor,

Petitioner s ,

vs. Case No. 15 - 6787N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

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 Comp ensation Association (NICA), on May 31,

2016.

STATEMENT OF THE CASE

On November 24, 2015, Petitioners, Crystal Sumpter and

Peter Davis, on behalf of and as parents and natural guardians of

Luke Z. Davis (Luke), a minor, filed a Petition for Determination

of Compensability of Injuries Pursuant to Florida Statute 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). Th e

Petition named Patrick Duff, M.D., as the physician providing

obstetrical services at the birth of Luke on March 27, 2014, at

Shands at the University of Florida (Shands), Gainesville,

Florida.

DOAH served NICA with a copy of the Petition on December 11,

2015. DOAH served Patrick Duff, M.D., with a copy of the

Petition on January 4, 2016. A copy of the Petition was sent via

certified mail to Shands on December 3, 2015 , and again on

May 19, 2016. On June 22, 2016, DOAH received a return receipt

from the United States Post Office showing that Shands had been

served with a copy of the Petition.

On April 13, 2016, Respondent filed its Response to Petition

for Benefits, suggesting that the subject claim is not

compensable, and requesting that a hearing be sc heduled to

address such issue.

On April 19, 2016, the undersigned entered an Order

instructing the parties to confer and advise the undersigned in

writing as to the need for a hearing, if any, and if a hearing is

needed, stating when they will be prepared to proceed to hearing;

the issue(s) still in dispute; their estimate of the time

required for hearing; and their choice of venue.

On May 18, 2016, Petitioners filed a Response to Order

Entered on April 19, 2016, stating that Petitioners, after

consultation with counsel and a review of the records , have

elected not to proceed with a final administrative hearing, and

accept the findings of the NICA experts as to the lack of both

permanent and substantial mental and physical impairment.

On May 31, 2016, NICA f iled a Motion for Summary Final

Order, asserting that Luke 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 to Petitioners on May 31, 2016. As of the date of

this Summary Final Order of Dismissal, no response has been filed

to the Motion for Summary Final Order.

FINDINGS OF FACT

1. Luke Z . Davis was born on March 27, 2014, at Shands at

the University of Florida, Gainesville, Florida. Lu ke weighed

4,060 grams at birth.

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

to review the medical records for Luke, to determine whether an

injury occurred to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occur ring in the course of

labor, delivery, or resuscitation in the immediate post - delivery

period. In a medical report dated February 25, 2016, Dr. Willis

described his findings in part as follows:

There was an apparent obstetrical event,

shoulder dystocia th at resulted in loss of

oxygen to the baby's brain during delivery

and continuing into the immediate post

delivery period. There was no trauma to the

spinal cord. The oxygen deprivation to the

brain resulted in some degree of brain

injury, as identified b y brain hemorrhage on

MRI. The MRI reported no evidence of

global brain injury. I am not able to

comment about the severity of the brain

injury.

3. Dr. Willis reaffirmed his opinion in an affidavit dated

May 25, 2016.

4. NICA retained Laufey Sigurdard ottir, M.D.

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

and to review his medical records. Dr. Sigurdardottir examined

Luke on March 30, 2016. In h er report dated March 30, 2016,

Dr. S igurdardottir opined in pertinent part as follows:

Summary: Here we have a 2 - year - old with a

difficult birth due to shoulder dystocia

leading to an acute hypoxic event lasting 13

minutes. The patient did receive cooling

protocol, had evidence of a brain injury on

MRI, although not severe, and is left wit h a

significant motor impairment from a flaccid

right arm, as well as expressive language

delay . . . .

[ T ] he patient is found to have substantial

physical impairment, as his right upper

extremity has little to no functional use.

There is a possible mild mental impairment

due to language delay, but his delays do not

seem substantial at this time.

[ T ] here is evidence of a hypoxic ischemic

event occurring at birth resulting in

neurologic depression at birth, as well as

mechanical injury resulting in a sever e

paresis of right upper extremity. Both his

hypoxic events, as well as his mechanical

brachial plexopathy is birth related.

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

have been no expert opinions filed that are contrary to the

opinion of D r. Willis that there was no evidence of global brain

injury or injury to the spinal cord. Dr. WillisÓ opinion is

credited. There are no expert opinions filed that are contrary

to Dr. SigurdardottirÓs opinion that Luke does not suffer from a

substantial m ental impairment. Dr. SigurdardottirÓs opinion is

credited.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

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 claims" 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 compensation with DOAH.

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

which administers the Plan, has "4 5 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 claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigne d. § 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.

§§ 766.3 04, 766.309, and 766.31, Fla. Stat.

10. 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

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and subst antially

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

cours e 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 po stdelivery 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 parti cipating physician at birth."

§ 766.31(1), Fla. Stat.

11. 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 a t 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 i mmediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

12. While Dr. Willis established that there was an apparent

obstetrical event which resulted in loss of oxygen to the ba byÓs

brain during delivery, and continuing into the immediate post

delivery period, the remaining issue to be determined is whether

the injury resulted in a permanent and substantial mental

impairment and a permanent and substantial physical impairment,

in asmuch as both are required to establish compensability. Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Div. of Admin.

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

13. The evidence, which is not refuted by any contrary

expert opinions, established that Luke does not suffer from a

substantial mental impairment. Therefore, Luke is not eligible

for benefits under the Plan. §§ 766.302(2) and 766.309(1), Fla.

Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Crystal Sumpter and

Peter Davis, on behalf of and as parents and natural guardians of

Luke Z. Davis, is dismissed with prejudice.

DONE AND ORDERED this 28th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 C lerk of the

Division of Administrative Hearings

this 28th day of June , 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. 7015 0640 0003 7652 5179)

J. Clancey Bounds, Esquire

Bounds Law Group

1751 North Park Avenue

Maitland, Florida 32751

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5186)

Amie Rice, Investigat ion Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7652 5193)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administratio n

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5209)

Patrick Duff, M.D.

Shands Hospital University of Florida

Room 301F MSB

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Ma il No. 7015 0640 0003 7652 5216)

Shands Hospital University of Florida

Attention: Risk Management

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 7015 0640 0003 7652 5223)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a fina l 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 fil ing the original notice of administrative appeal

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 appro priate 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).