16-005172N Alyssa York, A Minor Child, By And Through Her Next Friends, Natural Guardians And Natural Parent, Josinda York; Josinda York, Individually And As Mother Of Alyssa York vs. Florida Birth-Related Neurological Injury Compensation Association (Nica) Status: Closed DOAH Final Order on Tuesday, February 21, 2017.

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 in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALYSSA YORK, a minor child, by

and through her next friends,

natural guardians and natural

parent, JOSINDA YORK; JOSINDA

YORK, individually and as mother

of ALYSSA YORK,

Petitioner,

vs. Case No. 16 - 5172N

FLORID A BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION (NICA),

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unopposed

Motion for Summar y Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on February 13, 2017.

STATEMENT OF THE CASE

On September 1, 2016, Petitioner, Josinda York, individually

and on behalf of and as mother of Alyssa York (Al y ssa), 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 Inj ury Compensation Plan

(Plan). The Petition named Emily Balanky, M.D., as the physician

who provided obstetrical services at the birth of Alyssa on

June 11, 2014, at Baptist Medical Center South located in

Jacksonville, Florida.

DOAH served NICA with a cop y of the Petition on

September 14, 2016. DOAH served Emily Balanky, M.D., with a copy

of the Petition on September 15, 2016. On September 19, 2016,

DOAH received a return receipt from the United States Postal

Service showing that Baptist Medical Center S outh had been served

with a copy of the Petition.

On December 19, 2016, NICA filed a Response to Petition for

Benefits, asserting that Alyssa did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Stat utes. On February 13, 2017, NICA filed

an Unopposed Motion for Summary Final Order, representing that

Petitioner has no objection to the granting of this Motion.

As of the date of this Summary Final Order of Dismissal,

neither Dr. Balanky nor Baptist Medi cal Center South has

petitioned to intervene in this proceeding.

FINDINGS OF FACT

1. Alyssa York was born on June 11, 2014, at Baptist

Medical Center South located in Jacksonville, Florida. Alyssa

weighed 4,026 grams at birth.

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

to review the medical records for Alyssa. In a medical report

dated December 8, 2016, Dr. Willis opined as follows:

In summary, delivery was complicated by a

shoulder dystocia. The newborn was not

depressed with a 5 m inute Apgar score of 8.

Resuscitation after delivery required only

tactile stimulation and blow - by oxygen. The

baby had an ErbÓs palsy, but otherwise an

uncomplicated newborn hospital course.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, delivery or the immediate post

delivery period.

3. NICA retained Laufey Y. Sigurdardottir, M.D.

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

and to revie w her medical records. Dr. Sigurdardottir examined

Alyssa on December 2, 2016. In a medical report regarding her

independent medical examination of Alyssa, Dr. Sigurdardottir

opined as follows:

Summary: Alyssa is a 2 - 1/2 year - old who

suffered a brachial plexus injury during a

vaginal delivery complicated by a 1 minute

shoulder dystocia. At the current age of 2

years 5 months she has a functional deficit

that seems relatively mild and has not needed

surgical intervention at this time. Her

cognition, men tal abilities seem age

appropriate. In light of the above, my

results are the following:

Result as to question 1: Alyssa is found to

have a mild physical impairment, but no noted

mental impairment at this time.

Result as to question 2: The brachial

pl exopathy is most likely due to injury

sustained during the birthing process.

Results as to question 3: The prognosis for

full recovery is regarded [ sic ] as she

continues to have functional limitations in

her right arm. She however has normal

abilities i n other areas and her cognition is

completely normal.

In light of this, I do not recommend Alyssa

to be included in the NICA program. I will

be happy to answer additional questions.

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

baby's brain or spinal cord during labor, delivery or the

immediate post - delivery period. Dr. WillisÓ opinion is credited.

There are no contrary expert opinions filed that are contrary to

Dr. SigurdardottirÓs opinion that Alyssa has a mild physical

impairment but is not found to have a mental impairment at this

time. Dr. Sigurdardot tirÓs 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 "f or 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.

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

p arents, 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.

8. If NICA determines that the i njury 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 .

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 t he 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 substantially

mentally and physically im paired, 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

course of labor, delivery, or resuscitat ion

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 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."

§ 76 6.31(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 ge station 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 h ospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

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

caused by oxygen deprivation or mecha nical injury in the course

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

delivery period in a hospital which rendered her permanently and

substantially mentally and physically impaired. Therefore,

A l yssa is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Josinda York,

individually and as mother of Alyssa York, is dismissed with

prejudice.

DONE AND ORDERED 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, Florida 32399 - 3060

(850) 488 - 9675

Fax F iling (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

Florida Birth Related Neurological

Inju ry Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2252)

David Ryan Best, Esquire

Best Law Firm Florida, P.A.

Post Office Box 3306

Orlando, Florida 32802

(eServed)

(Ce rtified Mail No. 7014 2120 0003 1053 2269)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2276)

Amie Rice, Investigation Manager

Consumer Services Uni t

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 2283)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tal lahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2290)

Baptist South Medical Center

Attention: Risk Management

14550 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 2120 0003 1053 2306)

Emily Balan ky, M.D.

Suite 311

14546 Old St. Augustine Road

Jacksonville, Florida 32258

(Certified Mail No. 7014 2120 0003 1053 2313)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Cour t 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 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).