16-000215N Emerson Cardichon And Rose Loudes Cardichon, On Behalf Of And As Parents And Natural Guardians Of Jedediah Jacques-Rodson Cardichon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 3, 2016.

Summary: Child did not sustain an injury to the brain or spinal cord during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERSON CARDICHON and ROSE

LOUDES CARDICHON, on behalf of

and as parents and natural

guardians of JEDEDIAH JACQUES -

RODSON CARDICHON, a minor,

Petitioners,

vs. Case No. 16 - 0215N

FLORIDA BIRTH - RELATED

NEUROLOGICA L INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

NORTH BROWARD HOSPITAL, d/b/a

BROWARD HEALTH, d/b/a BROWARD

HEALTH CORAL SPRINGS; CARLOS

BARRIONUEVO, M.D.; AND

COMPREHENSIVE OBGYN, LLC,

Intervenors.

_______________________________/

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 May 4,

2016.

STATEMENT OF THE CASE

On December 31, 2015, Petitioners, Emerson Cardichon and

Rose Loudes Cardichon, on behalf of and as parents and natural

guardians of Jedediah Jacques - Rodson Cardichon (Jedediah), 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

Carlos Barri o nuevo, M.D., as the physician providing obstetrical

services at the birth of Jedediah on December 7, 2014, at Broward

Health Coral Springs located in Coral Springs, Florida.

DOAH served Carlos Barrionuevo, M.D., with a copy of the

Petition on January 19, 2016. DOAH served N ICA and Broward

Health Coral Springs with a copy of the Petition on January 20,

2016.

On February 3, 2016, North Broward Hospital, d/b/a Broward

Health Coral Springs, filed a Petition for Leave to Intervene

which was granted by Order dated February 4, 2016. On

February 17, 2016, Carlos Barrionuevo, M.D., and Comprehensive

OBGYN, LLC, filed a Motion to Intervene which was granted by

Order dated March 1, 2016.

On May 4, 2016, NICA filed a Motion for Summary Final Order,

asserting that Jedediah did not s ustain 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 and by e - mail to NICA and Intervenors

on May 4, 2016. An Order to Show Cause was ente red on May 17,

2016, which allowed Petitioners until May 31, 2016, to inform the

undersigned in writing why RespondentÓs Motion for Summary Final

Order should not be granted. As of the date of this Summary

Final Order of Dismissal, no response has been fi led to the

Motion for Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. Jedediah Cardichon was born on December 7, 2014, at

Broward Health Coral Springs located in Coral Springs, Florida.

Jedediah weighed 4,720 grams at birth.

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

to review the medical records for Jedediah, to determine whether

an injury occurred to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

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

period. In a medical report dated April 12, 2016, Dr. Willis

described his findings in part as follows:

Vaginal delivery was assisted by vacuum

extraction. Although the baby suffered a

brachial ple xus injury, the delivery note by

the Obstetrician stated the delivery occurred

with no complications. Birth weight was

4,720 grams, which would be large for

gestational age.

Apgar scores were 5/9. No umbilical cord

blood gas was done. Respiratory depres sion

at birth required bag and mask ventilation

for 2 to 3 minutes with Ðgood response . Ñ The

baby was transported to the NICU for

respiratory depression. Chest X - Ray was

consistent with Transient Tachypnea of the

Newborn (TTN). Intubation was not requir ed.

Respiratory depression worsened soon after

birth and was managed with high frequency

nasal canula oxygen.

Intravenous glucose was given for

hypoglycemia. Cardiac ECHO findings were

consistent Hypertrophic Cardiomyopathy, which

is generally related to maternal Diabetes.

This was managed with a short course of

Propranolol. Antibiotics were started for

R/O sepsis. Cultures were negative.

Physical exam of the newborn identified

decreased movement of the left arm. Brachial

plexus palsy was diagnosed. There was no

report of seizure activity. Imaging of the

brain, CT or MRI was apparently not done.

In summary, pregnancy was complicated by

insulin dependent Gestational Diabetes with

resulting fetal macrosomia. The baby

suffered a brachial plexus injury , ErbÓs

palsy, most likely related to macrosomia.

The newborn had respiratory distress, but

never required intubation. Chest X - Ray was

consistent with TTN.

There was an obstetrical event that resulted

in a brachial plexus injury, but medical

records d o not support related hypoxic injury

or trauma to the brain or spinal cord.

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

April 21, 2016.

4. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny),

a pediatric neurologist, to examine Jededi ah and to review his

medical records. Dr. Duchowny examined Jedediah on April 6,

2016. In an affidavit dated April 28, 2016, Dr. Duchowny opined

in pertinent part as follows:

5. In summary, JedediahÓs neurological

examination reveals findings consistent with

left upper extremity ErbÓs palsy. These

findings are restricted to movement of the

proximal left upper extremity musculature and

do not involve the central nervous system

(brain and spinal cord). Furthermore,

JedediahÓs examination does not reveal either

a substantial mental or motor impairment and

the findings point to compromise only in the

peripheral nervous system.

6. JedediahÓs medical records confirm his

motherÓs information and detail both the

gestational diabetes mellitus and fetal

macroso mia. Jedediah was delivered vaginally

with vacuum assist and weight 4720 grams (10

pounds 6 ounces) at birth. Apgar scores were

5 and 9 at one and five minutes. No cord

gases were obtained. He required ventilator

support for several minutes after deliv ery

but his neonatal course subsequently

stabilized.

Based upon my evaluation and record review, I

am not recommending Jedediah for inclusion

within the NICA program.

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 Dr. Willis that there was an apparent obstetrical

event that resulted in brachial injury, but medical records do

not support a birth related hypoxic injury or trauma to the brain

or spinal cord. Dr. WillisÓ opini on is credited. There are no

expert opinions filed that are contrary to Dr. DuchownyÓs opinion

that JedediahÓs ErbÓs palsy does not involve the central nervous

system (brain or spinal cord) and that his examination does not

reveal either a substantial men tal or motor impairment.

Dr. DuchownyÓs 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 wa s 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, he r 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 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

assign ed. § 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.

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 subs tantially

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

cour se 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 p ostdelivery 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 part icipating 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 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.

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

expert opinions, established that Jedediah did not sustain an

in jury to the brain or spinal cord caused by oxygen deprivation

or mechanical injury in the course of labor and delivery.

Moreover, his ErbÓs palsy does not constitute a substantial

mental or motor impairment. Therefore, Jedediah is not eligible

for benefit s 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 Emerson Cardichon

and Rose Loudes Cardichon, on behalf of and as parents an d

natural guardians of Jedediah Jacques - Rodson Cardichon, is

dismissed with prejudice.

DONE AND ORDERED this 3rd day of June , 2016 , in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Divisi on 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 3rd day of June , 2 016 .

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. 7012 3050 0000 1249 8444)

Emerson Cardichon

Rose Loudes Cardichon

2289 Northwest 52nd Court

Fort Lauderdale, Florida 33309

(Certified Mail No. 7012 3050 0000 1249 8451)

William V. Carcioppolo, Esquire

Lacava & Jacobson, P.A.

4901 Northwest 17th Way , Suite 302

Fort Lauderdale, Florida 33309

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8468)

Julia M. Ingle, Esquire

Lubell & Rosen, LLC

Suite 602

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8475)

Dav id W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7012 3050 0000 1249 8659)

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 0003 7652 5025)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Cer tified Mail No. 7015 0640 0003 7652 5032)

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 proceeding s 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. Carreras , 598 So. 2d 299 (Fla. 1st D CA

1992).