16-005497N Megan Mueller And Corey Mueller, On Behalf Of And As Parents And Natural Guardians Of Lucas Mueller, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 8, 2016.

Summary: There was no apparent obstetric event that resulted in oxygen deprivation or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period. Therefore, the child is not eligible to receive benefits of the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEGAN MUELLER AND COREY MUELLER,

on behalf of and as parents and

natural guardians of LUCAS

MUELLER, a minor,

Petitioners,

vs. Case No. 16 - 5497N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATIO N,

Respondent.

_______________________________/

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 Co mpensation Association (NICA), on

November 1, 2016.

STATEMENT OF THE CASE

On September 14, 2016, Petitioners , Megan Mueller and

Corey Mueller , on behalf of and as parents and natural guardians

of Lucas Mueller ( Lucas ), a minor, filed a Petition for Benefit s

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

Jor ge Alvarez - Hernandez , M . D. , as the physician who provided

obstetric services for the birth of Lucas on September 21, 2014,

at Lakewood Ranch Medical Center in Lakewood Ranch, Florida .

DOAH served NICA with a copy of the Petition on

September 23, 2016. D OAH served Lakewood Ranch Medical Center

with a copy of the Petition on September 24, 2016. DOAH served

Jorge Alvarez - Hernandez , M.D., a copy of the Petition on

September 27, 2016. As of the date of this Summary Final Order

of Dismissal, neither Dr. Alva rez - Hernandez nor Lakewood Ranch

Medical Center has petitioned to intervene into this proceeding.

On November 1 , 201 6 , NICA filed a Motion for Summary Final

Order, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable because Lucas did not sustain

a Ðbirth - related neurological injuryÑ as that term is defined in

section 766.302(2), Florida Statutes . Petitioners did not file a

response to the Motion.

On November 16, 2016, an Order to Show Cause was entered

which allowed Petitioners until December 1, 2016, to inform the

undersigned in writing as to why the motion should not be granted

and a summary final order be entered finding PetitionersÓ claim

is not compensable. To date, no response has been filed by

Petitioners to the Motion or to the Order to Show Cause.

FINDINGS OF FACT

1. Lucas Mueller was born on September 21 , 2 014 , at

Lakewood Ranch Medical Center in Lakewood Ranch , Florida.

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

to review the medic al records for Lucas . In a report dated

October 24 , 201 6 , Dr. Willis described his findings in pertinent

part as follows:

The fetal heart rate (FHR) monitor tracing

during labor was reviewed and did not suggest

fetal distress. Delivery was by vacuum

assi sted vaginal birth. Vacuum assistance

was done for maternal exhaustion. Birth

weight was 7 lbs 7 ozÓs.

The baby was not depressed at birth. Apgar

scores were 7/9. The newborn hospital course

was benign.

ÐWell visitsÑ with Pediatrics after birth at

one to four months of age indicated no

problems. The baby was evaluated at 5 months

of age for Ðhead dropping.Ñ Developmental

delays were noted by 7 months of age.

Seizure activity was identified by EEG at 11

months of age.

MRI of the cervical spine wa s negative. MRI

of the brain at about one year of age was

essentially negative. Genetic evaluation

with microarray did not identify any genetic

disorders.

I n summary, the child was not depressed at

birth and apparently no problems were noted

until abou t 5 months of age. MRI of the

brain was essentially negative.

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. Willis reaffirmed his opinion in an affidavit dated

October 31, 2016.

4. A review of the file reveals that no contrary evidence

was presented to dispute Dr. WillisÓ finding that there was no

apparent obstetric event that resulted in oxygen deprivation or

mechan ical trauma during labor, delivery, or the immediate post -

delivery period. Dr. WillisÓ 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 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,

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 n eurological

injury." § 766.305(4), Fla. Stat.

8 . NICA has determined that Petitioner s do not have a claim

that is compensable under the Plan and has filed a Motion for

Summary Final Order, requesting that an order be entered finding

that the claim is n ot compensable.

9 . In ruling on the motion, the a dministrative l aw ju dge

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 substantially

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).

§ 766.309(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 oxyge n

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, established that

there was no apparent obstetrical event that resulted in loss of

oxygen or mechanical trauma to LucasÓs brain during labor,

delivery or the immediate post - delivery period. Thus, Lucas is

not eligible for benefits u nder the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Megan Mueller and

Corey Mueller , o n behalf of and as parents and natural guardians

of Lucas Mueller , a minor, is dismisse d with prejudice.

DONE AND ORDERED this 8 th day of December , 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 Clerk of the

Division of Administrative Hearings

this 8 th day of December , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipl ey, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7013 1710 0000 1617 1251)

Megan Mueller

Cory Mueller

1052 Bella Vida Boul evard

Orlando, Florida 32828

(Certified Mail No. 7012 1640 0000 7869 0007)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3693)

Amie Rice, Inve stigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0001 0080 3709)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care A dministration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3716)

Lakewood Ranch Medical Center

Attention: Risk Management

8330 Lakewood Ranch Boulevard

Bradenton, Florida 34202

(Certified Ma il No. 7012 3050 0001 0080 3723)

Jorge Alvarez - Hernandez, M.D.

Suite 240

8340 Lakewood Ranch Boulevard

Lakewood Ranch, Florida 34202 - 5185

(Certified Mail No. 7012 3050 0001 0080 3730)

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 origi nal 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 Distri ct 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).