16-002436N Gary And Racquel Donaldson, On Behalf Of And As Parents And Natural Guardians Of Harmony Donaldson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 11, 2016.

Summary: Child did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY AND RACQUEL DONALDSON, on

behalf of and as parents and

natural guardians of HARMONY

DONALDSON, a minor,

Petitioners,

vs. Case No. 16 - 2436N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

BETHESDA HOSPITAL, INC.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Responde nt, Florida Birth - Related

Neurological Association (NICA), on September 7, 2016.

STATEMENT OF THE CASE

On April 29, 2016, Petitioners, Gary and Ra c quel Donaldson,

on behalf of and as parents and natural guardians of Harmony

Donaldson (Harmony), a minor, fi led 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 (Pla n) . The Petition

alleged that Harmony suffered brain damage as a result of a birth -

related neurological injury.

The Petition named Jennifer Daif - Parker, M.D., as the

physician providing obstetric services at the birth of Harmony at

Bethesda Memorial Hospi tal in Boynton Beach, Florida.

DOAH served Bethesda Memorial Hospital on May 6, 2016. On

May 9, 2016, DOAH received a return receipt from the United States

Postal Service showing that Jennifer Daif - Parker, M.D., had been

served with a copy of the Petition . DOAH served NICA with a copy

of the Petition on June 5, 2016.

Bethesda Hospital, Inc., filed a Petition to Intervene, which

was granted by Order dated July 25 , 2016. As of this date,

Dr. Daif - Parker has not petitioned to intervene in this

proceeding.

On August 24, 2016, NICA filed a response to the 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. Ñ NICA requested that a hearing be

schedule d to resolve whether the claim was compensable.

On September 7, 2016, NICA filed a Motion for Summary Final

Order, asserting that Harmony did not sustain a Ðbirth - related

neurological injuryÑ as that term is defined in section

766.302(2), Florida Statutes . The motion was served by U.S. mail

on September 7, 2016. No response to the Motion was filed by

Petitioners.

On September 20, 2016, an Order to Show Cause was entered

which allowed Petitioners until October 5, 2016, to inform the

undersigned as to why a Summary Final Order of Dismissal should

not be entered and the case closed. To date, no response has

been filed to the Motion for Summary Final Order or to the Order

to Show Cause.

FINDINGS OF FACT

1. Harmony Donaldson was born on February 22, 2016, at

Bethesda Memorial Hospital in Boynton Beach, Florida. Harmony

weighed in excess of 2,500 grams at birth.

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

review HarmonyÓs medical records. In an affidavit dated

September 16, 2016, Dr. Willis made the following findings and

expressed the following opinion:

5. In summary, this child was delivered by

what appears to be an uncomplicated vaginal

birth. The baby was not depressed at birth.

Apgar scores were 9/9. Mother and baby were

stated to b e stable in the delivery room and

the baby was taken to the well nursery.

However, the baby did suffer an intracranial

hemorrhage, which became clinically apparent

about 8 hours after birth. The brain does not

appear to be a birth related hypoxic or

trau matic event.

6. There was no apparent obstetrical event

that resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

period.

3. Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

injury to the babyÓs brain during labor, delivery or the

immediate post - delivery period is credited.

4. Respondent retained Michael Duchowny, M.D.

(Dr. Duchowny), a pediatric neurologist, to evaluate Ha rmony.

Dr. Duchowny reviewed HarmonyÓs medical records and performed an

independent medical examination on her on August 17, 2016.

Dr. Duchowny made the following findings and summarized his

evaluation as follows:

IN SUMMARY HarmonyÓs neurological exam ination

today reveals no specific focal or

lateralizing findings. She appeared

cognitively intact and her motor development

is proceeding at age level. There is no

evidence of oromotor dysfunction and her

clavicular fracture has obviously healed

well.

I have not yet had an opportunity to review

medical records and I will issue a final

report once the review process is complete.

5. After reviewing HarmonyÓs medical records, Dr. Duchowny

wrote an addendum to his earlier report in which he stated:

ADDE NDUM : Review of medical records reveals

that Harmony was born at term and had 1 and 5

minute Apgar scores of 9 and 9.

Desaturations thought to be seizures

(accompanied by right arm and leg jerking)

occurred at 8 hours of age. Her PTT was

slightly prolon ged but INR and fibrinogen was

normal, and there was no evidence clinically

of DIC. Factors 7, 10 and 13 levels were

normal. A head ultrasound on March 5, 2016

revealed haziness of the thalami which was

not observed on an MRI scan after the

transfer to N CH. This later study did

however reveal bilateral parietal

intraparenchymal hemorrhage , hemorrhage in

the frontal gray - white interface and punctate

hemorrhage in the sylvian aqueduct. The

basal ganglia were normal; MRA and MRV were

likewise WNL.

Based o n review of the medical records and

the neurological evaluation, I do not believe

that Harmony has a substantial mental or

motor impairment, and did not suffer from

substantial intrapartum oxygen deprivation or

mechanical injury. I am therefore not

recomm ending H armony for inclusion in the

NICA program.

6 . Dr. Duchowny stated his ultimate o pinion in an affidavit

dated September 7, 2016 , in which he opined, ÐI do not believe

that HARMONY h as a substantial mental or motor impairment and did

not suffer fro m substantial intrapartum oxygen deprivation or

mechanical injury.Ñ

7 . Dr. DuchownyÓs opinion that Harmony does not have a

substantial mental or motor impairment and did not suffer from

substantial intrapartum oxygen deprivation or mechanical injury

is cr edited.

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

baby Ós brain during labor, delivery or the immediate post -

delivery period. There are no expert opinions filed that are

contrary to Dr. DuchownyÓs opinion that Harmony does not have a

substantial mental or motor impairment.

CONCLUSIONS OF LAW

9. 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).

10. 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 - rel ated 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

deprivat ion 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. (emphasis added).

11. The injured infant, her or his personal representative,

parents, dependents, and next of kin, may seek compensation under

th e P lan by filing a claim for compensation 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

comp lete 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 injury."

§ 766.305(4), Fla. Stat.

12. If NICA determines that the injury all eged 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 ot her 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.

13. I n 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 sat isfaction 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 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 participating physician in the

course of labor, delivery, or resuscitation i n

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 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 instant case, Petitioners filed a claim alleging

that Harmony did sustain a birth - related neurological injury that

is compensable under the NICA P lan. As the proponent of the issue

of compensability, the burden of proof is upon Petitioners.

§ 766.309(1)(a), Fla. 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 administrati ve tribunal.").

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

Harmony did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course of

labor, delivery or resuscitation in the immediate pos t - delivery

period which rendered her permanently and substantially mentally

and physically impaired. Thus, Harmony is not 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 Gary and Ra c quel Donaldson, on

behalf of and as parents and natural guardians of Harmony

Donaldson, is dismissed with prejudice.

DONE AND ORDERED this 11th day of October , 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 Cler k of the

Division of Administrative Hearings

this 11th day of October , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Ta llahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3631)

Gary Donaldson

Racquel Donaldson

5117 Little Beth Drive North

Boynton Beach, Florida 33472

(Certified Mail No. 7012 3050 0001 0080 3556)

Susanne Elizabeth Riedhammer, Esqu ire

Sonneborn Rutter Cooney Viergever

Burt & Lury, P.A.

1400 Centrepark Boulevard , Suite 400

West Palm Beach, Florida 33401

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3563)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6t h Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3570)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7 012 3050 0001 0080 3587)

Justin Senior, Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3617 )

Jennifer Daif - Parke r, M.D.

5150 Linton Boulevard, Suite 210

Delray Beach, Florida 33484

(Certified Mail No. 7012 3050 0001 0080 3600)

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 Ap peal pursuant to section

766.311(1), Florida 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 Divisio n 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 - Relate d Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).