16-000940N Deanna Brayboy, Individually And As Parent Of Mya Brayboy, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 21, 2017.

Summary: There was no obstetrical event that resulted in oxygen deprivation to the baby's brain. Child does not have a permanent mental or physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEANNA BRAYBOY, individually and

as parent of MYA BRAYBOY, a

minor,

Petitioner,

vs. Case No. 16 - 0940N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

DOROTHY J. ODOM, M.D.; PHYSICIAN

ASSOCIATES, LLC; AND ORLANDO

HEALTH, INC., d/b/a WINNIE

PALMER HOSPITAL,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unoppose d

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on February 13, 2017.

STATEMENT OF THE CASE

On February 12, 2016, Petitioner, Deanna Brayboy,

individually and as parent of Mya Brayboy (Mya), a minor, filed a

Petition for Determination of Compensability 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 alleged that Mya suffered

permanent and substantial physical and mental impairment as the

result of oxygen deprivation during labor and delivery .

The Petition named Pamela Cates - Smith, M.D ., as the physician

providing obstetric services at the birth of Mya at Winnie Palmer

Hospital, located in Orlando, Florida, on March 6, 2014.

DOAH served NICA with a copy of the Petition on February 23,

2016. DOAH served Pamela Cates - Smith, M.D., and Win nie P almer

Hospital with a copy of the Petition on February 22, 2016.

A Petition to Intervene was filed by Dorothy J. Odom, M.D. ;

Physician Associates , LLC ; and Orlando Health, Inc., d/b/a Winnie

Palmer Hospital, which was granted by Order dated April 7, 2016.

On May 10, 2016, NICA filed a Response to Petition for

Benefits , giving notice that the injury does not "meet the

definition of a 'birth - related neurological injury'Ñ as that term

is defined in section 766.302(2), Florida Statutes, which

speci fically requires that the injury render Ðthe infant

permanently and substantially medically and physically impaired.Ñ

NICA requested that a hearing be scheduled to resolve whether the

claim was compensable.

On February 10, 201 7 , NICA filed a Status Repor t i ndicating

that the parties were in agreement that a hearing to determine

compensability will not be necessary and that a motion for summary

final order would be forthcoming.

On February 13, 2017, NICA filed an Unopposed Motion for

Summary Final Order, asserting that Mya did not sustain a birth -

related neurological injury as that term is defined in section

766.302(2). The Motion states that Petitioner and Intervenors

have no objection to the Motion.

FINDINGS OF FACT

1. Mya Brayboy was born on March 6, 2014, at Winnie Palmer

Hospital, located in Orlando, Florida.

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

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

March 21, 2016, Dr. Willis described his findings in pertinent

pa rt as follows:

In summary, this was a twin pregnancy with

vaginal delivery of the first baby followed

by Cesarean section for the second baby due

to footling breech presentation and fetal

bradycardia (fetal distress). Fetus B (Mya

Brayboy) was depressed a t birth and had a

blood gas pH of 6.86, consistent with

acidosis. The newborn hospital course was

complicated by multi - system organ failure.

EEG was abnormal and consistent with a

history of HIE. However, the MRI on DOL 8

was reported as unremarkable.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs

brain during labor, delivery and continuing

into the immediate post delivery period. The

oxygen deprivation resulted in some degree of

brain injury based on the abnorm al EEG . I am

unable to determine the severity of any

possible injury.

3. Dr. WillisÓ opinion that there was an apparent

obstetrical event that resulted in loss of oxygen to the babyÓs

brain during labor, delivery and continuing into the immediate

post - delivery period is credited.

4. Respondent retained Laufey Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to evaluate Mya.

Dr. Sigurdardottir reviewed MyaÓs medical records, and performed

an independent medical examination on her on April 27, 2016. In

a neurology evaluation based upon this examination and a medical

records review, Dr. Sigurdardottir made the following findings

and summarized her evaluation as follows:

In summary: This is a 2 - year - old, ex - 36 - week

twin with signific ant intrapartum bradycardia

resulting in an emergent C - section. Patient

had a neonatal neurologic syndrome including

hypotonia, little respiratory drive with

multisystem abnormalities including a

metabolic acidosis, hypotension, elevated

creatinine, eleva ted coagulation studies,

elevated LFTs, and poor urine input. The

patientÓs Apgar scores were 2 after 1 minute,

2 after 5 minutes and 3 after 10 minutes and

the patient required a 9 - day NICU stay.

Fortunately, her EEG was reassuring and her

MRI did not s how definite signs of acute

ischemic injury. Her neurologic exam during

this examination is normal, indicating good

motor function for her age. A full language

evaluation could not be performed, but as per

report from mother, she is on target for

normal language development. No autistic

features were noted.

Therefore, my results within reasonable

degree of medical certainty are the

following:

Results as to Question 1: The patient is

found to have no permanent mental or physical

impairment.

Result s as to Question 2: There is evidence

of complications during MyaÓs birth that

resulted in hypoxic ischemic encephalopathy,

although her recovery has been favorable.

Based on record review the timing of her

hypoxic event is intrapartum.

Results as to Question 3: We would expect

full life expectancy and an excellent

prognosis for both motor and mental skills.

In light of the above - mentioned details, I do

not recommend Mya to be included into the

Neurologic Injury Compensation Association

(NICA) and w ould be happy to answer

additional questions.

5. In order for a birth - related injury to be compensable

under the NICA Plan, the injury must meet the definition of a

birth - related neurological injury and the injury must have caused

both permanent and subs tantial mental and physical impairment.

Dr. SigurdardottirÓs opinion that Mya does not have a permanent

physical or mental impairment is credited.

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

have been no expert opinions filed that are contrar y to the

opinion of Dr. Sigurdardottir that Mya does not have a permanent

physical or mental impairment.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

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

§§ 766 .301 - 766.316, Fla. Stat. (2014).

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

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

catastrophic 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 neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams f or 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 . This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality. (emphas is added).

9. 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 submit relevant written information relating to the issue of

whether the injury is a birth - related neurological inju ry."

§ 766.305(4), Fla. Stat.

10. 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

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.

11. In discharging this responsibility, 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

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 ther eby 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. 766.302(2).

(b) Whether obstetrical services were

delivered by a p articipating physician in the

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, o r 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.

12. In the instant case, Petitioner filed a claim alleging

that Mya did suffer permanent and substantial physical and mental

impairment as a result of oxygen depriva tion during labor and

delivery . As the proponent of the issue of compensability, the

burden of proof is upon Petitioner. § 766.309(1)(a), Fla. Stat.

See also Balino v. Dep't of Health & Rehabilitative 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.").

13. To be compensable under the NICA Plan, there must have

been an obstetrical event which resulted in loss of oxygen to th e

babyÓs brain during labor, delivery, and continuing into the

immediate post - delivery period, resulting in a permanent and

substantial mental impairment and a permanent and substantial

physical impairment, inasmuch as both are required to establish

compen sability. Fla. Birth - Related Neurological Injury Comp.

Ass'n v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

14. The evidence, which is not refuted, established that Mya

does not have a permanent mental or physical impairment. Thus,

Mya is n ot entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

That the Petition filed by Deanna Brayboy, individually and

as parent of Mya Brayboy, is dismissed with prejudice.

DONE AND O RDERED this 21st day of February , 2017 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 21st day of February , 2017 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Fl orida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2184)

Vanessa L. Brice, Esquire

Colling Gilbert Wright & Carter

801 North Oran ge Avenue , Suite 830

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2191)

Jeremy T. Palma, Esquire

Rissman, Barrett, Hurt, Donahue

Donahue and McLain, PA

201 East Pine Street , Suite 1400

Orlando, Florida 32801

(eServed)

(Cert ified Mail No. 7014 2120 0003 1053 2207)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2214)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 2221)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Talla hassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2238)

Pamela Cates - Smith, M.D.

4401 South Orange Avenue, Suite 108

Orlando, Florida 32806

(Certified Mail No. 7014 2120 0003 1053 2245)

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

commen ced by filing 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 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).