16-003593N Justin And Jade Wiles, On Behalf Of And As Parents And Natural Guardians Of Lennox Wiles, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 16, 2017.

Summary: There was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to the baby's brain.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTIN AND JADE WILES, on behalf

of and as parents and natural

guardians of LENNOX WILES, a

minor,

Petitioners,

vs. Case No. 16 - 3593N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Re spondent,

and

ALEXANDER J. BRICKLER, M.D. ;

NORTH FLORIDA WOMEN'S CARE ; AND

TALLAHASSEE MEMORIAL HEALTHCARE,

INC.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for co nsideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

January 24, 2017.

STATEMENT OF THE CASE

On May 12 , 201 6 , Petitioner s , Justin and Jade Wiles , on

behalf of and as parents and natural guardians of Lennox Wiles

(Lennox), 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 was filed pro se.

The Petition named A.J. Brickler , M.D., as the physician who

provided obstetric services at the birth of Lennox on Ma y 11 ,

201 4 , at Tallahassee Me morial Hospital in Tallahassee , Florida.

DOAH served NICA and A.J. Brickler, M.D., with a copy of the

Petition on June 28 , 201 6 . DOAH served Tallahassee Memorial

Hospital (TMH) with a copy of the Petition on June 30, 2016.

On August 2, 2016 , Alexander J. Brickler, M.D., and North

Florida WomenÓs Care filed a Petition for Leave to Intervene,

which was granted by Order dated August 1 6 , 201 6 . On Novem ber 1,

2016 , TMH filed a Mo tion for Leave to Intervene, which was

granted by Order dated Novem ber 2 , 201 6 .

Notices of Appearance were filed by attorneys on behalf of

Petitioners on August 24, 2016. Petitioners, now represented by

counsel, filed a Motion for Leave to Amend Petition, which was

granted. An Amended Petition Under Protest was filed.

On January 24 , 201 7 , NICA filed a Motion for Summary Final

Order , asserting that Lennox did not sustain a birth - related

neurological injury. TMH and Dr. Brickler requested and received

an extension of time in which to respond to NICAÓs Motion.

Dr. Brickler and Nor th Florida WomenÓs Care filed a Withdrawal of

Motion to Defer Ruling or Hearing on NICAÓs Motion for Summary

Final Order on March 8, 2017. The following day, TMH filed a

Notice of Withdrawal of Opposition to NICAÓs Motion for Summary

Final Order. Petitio ners did not file a response to NICAÓs

Motion for Summary Final Order. However, PetitionersÓ Amended

Petition Under Protest seeks an order finding that the claim is

not compensable under the NICA statutes. Consequently, there is

no longer opposition to N ICAÓs Motion, and a hearing is no longer

necessary.

FINDINGS OF FACT

1. Lennox Wiles was born on Ma y 11 , 201 4 , at Tallahassee

Memorial Hospital located in Tallahassee , Florida. Lennox

weighed in excess of 2,500 grams at birth.

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

to review the medical records for Lennox, 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, delivery, or resuscitation in the immediate post - delivery

period. In an affidavit dated January 23, 2017, Dr. Willis set

forth his findings and opinion in pertinent part as follows:

It is my opinion the mother was not in labor,

so the injury did not occur during labor.

Delivery wa s by Cesarean section, so hypoxic

brain injury did not occur during delivery.

The baby was crying at birth, again

suggesting there was no significant brain

injury during delivery. Respiratory distress

occurred shortly after delivery and required

bag and mask ventilation for 30 seconds.

Apgar score was 9 by 5 minutes. Spontaneous

respiratory activity resumed and the baby was

left with the Labor and Delivery staff. Once

the NICU staff left the baby with the L & D

staff, this would indicate the baby was

s table and would end the immediate post -

delivery period. It would be unlikely that

significant hypoxic brain injury occurred

during post - delivery period, which would be

the brief period from delivery until the baby

was left with the L & D staff. Based on this

information, it does not appear this child

suffered oxygen deprivation sufficient to

cause brain injury during the labor, delivery

or the immediate post delivery period.

In conclusion, 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. NICA retained Laufey Y. Sigurdardottir, M.D.

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

and to review his medical recor ds. Dr. Sigurdardottir examined

Lennox on October 19, 2016. In an affidavit dated January 19,

2017, Dr. Sigurdardottir summarized her findings from the medical

evaluation and opined as follows:

Lennox is found to have substantial motor and

mental impairm ent at this time. At the age

of [2 - 1/2], he is dependent on his caretakers

for all care and although he can grab toys

and indicate wants and needs in a very simple

manner, he has what seem to be significant

cognitive delays. His motor disability is

signi ficant.

There is evidence of decreased fetal movement

and nonreassuring fetal heart rate. This led

to his cesarean section. The patient did

have signs of ischemia including coagulopathy

at birth and went into a persistent pulmonary

hypertension suggesti ve of fetal distress.

His current clinical picture is that of

cerebral palsy. The injury is likely to have

occurred prenatally, prompting decreased

fetal movements. The mother was however not

in active labor at time of delivery.

At this time, LennoxÓs prognosis for life

expectancy is excellent, but for full

recovery is extremely guarded as he has

substantial mental and physical impairment

and is not sitting at this time.

In light of the above details, and the

absence of active labor at time of delivery ,

I do not recommend Lennox being included in

the Neurologic Injury Compensation

Association Program.

4. 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

babyÓs brain during labor, delivery or the immediate post -

delivery period. Dr. WillisÓ opinion is credited. There are no

expert opinions filed that are contrary to Dr. SigurdardottirÓs

opinion that while Lennox has substantial motor and mental

impairment, LennoxÓs cerebral palsy is likely to have occurred

prenatally and there was no active labor at the time of delivery.

Dr. SigurdardottirÓs opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative 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 providin g 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.

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

parents, dependents, and ne xt 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.

8. If NICA determines that the injury alleged in a claim i s

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

di sputes 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.

9. 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

adm inistrative 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 presu mption 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

course of labor, delivery, or resuscitation

in the immediate postd elivery 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.

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 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.

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

expert opinions, established that Lennox 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. Therefore,

Lennox is not eligible for benefits under the Plan.

§§ 766.302(2) and 766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Fi ndings of Fact and Conclusions of

Law, it is ORDERED that the Amended Petition Under Protest filed

by Justin Wiles and Jade Wiles, on behalf of and as parents and

natural guardians of Lennox Wiles, a minor, is dismissed with

prejudice. The final hearing s cheduled for April 20, 2017, is

cancelled.

DONE AND ORDERED this 16th day of March , 2017 , 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 16th day of March , 2017 .

COPIES FURNISHED:

(via certifie d mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4254)

Craig A. Dennis, Esquire

D ennis, Jackson, Martin & Fontela, P.A.

Suite 200

1591 Summit Lake Drive

Tallahassee, Florida 32317

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4261)

Thomas H. Leeder, Esquire

Leeder Law

Suite 202

8551 West Sunrise Boulevard

Plantation, Florid a 33322

(eServed)

Certified Mail No. 7016 0910 0001 7980 4278)

Scott M. Newmark, Esquire

Cohen & Newmark

Suite 200E

411 East Atlantic Avenue

Delray Beach, Florida 33483

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4285)

Tana D. Storey, Esquire

Rut ledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4292)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4308)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4315)

Amie Rice, Investigation Manager

Consumer Ser vices Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 0910 0001 7980 4322)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7980 4339)

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

commenced by filing the original n otice of a dministrative a ppeal

with the a gency c lerk of the Division of Administrative Hear ings

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

1992).